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Vol. CXXXI.-No. 3563
BOARD OF EDUCATION v. RICE AND
SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
Re CONOLLY BROTHERS LIMITED; WOOD V. CONOLLY BROTHERS LIMITED AND OTHERS.-Lancaster Palatine Court-Debenture holders' action in High Court HAYNES v. FORD.-Market-Statutory market Market rights Disturbance--Rival market-Warehouse -Shop"-Sale in own shop......... 696 Re HYDE PARK PLAC CHARITY.Practice-Charity-Scheme - Leave to intervene and attend proceedings -Time for intervention FAUNTLEROY v. BEEBE.-Administraion Real estate-Conversion Order for sale by court-Portion of real estate remaining unsold ........ 704 Re BAXTER'S TRUSTS; MALLING v. ADDISON. Annuity- Chare on easements and chattels-Deed of grant Construction .....
Re ROBINSON; CLARKSON v. ROBINSON (No. 2).-Moneylender-Transaction purporting to be out-and-out transfer of property
HIGH COURT OF JUSTICE. CHANCERY DIVISION. WILSON r. AMALGAMATED SOCIETY OF ENGINEERS AND OTHES.-Trade union funds Levy for political purposes-Meaning of voluntary levy Re LODGE'S PATENT.-Patent-Expiration-Application to prolongInsufficient remuneration-Separate claims for distinct inventions......... 716 KING'S BENCH DIVISION COPE v. SHARPE. Landlord and tenant-Trespass Heath fireRight of bailiff of shooting tenant to adopt means for extinguishing ...... 718 KING'S BENCH DIVISION, IN BANKRUPTCY.
NOTES OF RECENT DECISIONS HOT
LEGISLATION AND JURISPRUDENOK.Topics
*** 245 215
PARLIAMENTARY SUMMARY.- Topics 216
Council: Circuit of the Judges Judicial Committee of the Privy Council: List of Business, June and July 1911; Addendum - Winter Assizes
ISTHS, MARRIAGES, AND DEATHS
The Law and the Lawyers.
Ar the annual general meeting of the Law Society, a full report of which we publish this week, the important question of land transfer again received considerable attention. As we pointed out when dealing with the annual report of the Council, the committee appointed by that body to consider the report of the Land Transfer Commission had not yet concluded their deliberations, and we quite agree that it would be a great pity if the House of Lords expressed any definite opinion as to the policy to be adopted with regard to land transfer in the debate that has been foreshadowed by the LORD CHANCELLOR and Lord HALSBURY until the Law Society has had an opportunity of fully considering the views of the Commission. As we pointed out at the time, the facts contained in the land transfer report form a strong indictment against the present system of land transfer and registration, and we gather from the observations of the President, Sir HENRY JOHNSON, that the Law Society desires to act in concert with the provincial law societies in the matter.
WE think that the whole Profession will agree with Mr. Justice DARLING regarding the punishment inflicted on Mr. ARTHUR NEWTON, with reference to the so-called CRIPPEN letter, that "if it errs at all, it errs on the side of leniency." Apparently it was contended that the facts found by the Statutory Committee of the Law Society, which Lord ALVERSTONE pointed out were abundantly warranted by the evidence, did not amount to professional misconduct within the meaning of the Solicitors Acts. It is not surprising that the Divisional Court refused to accept this view, but
had it been compelled to hold otherwise an immediate amendment of existing legislation would have been imperatively necessary. We think, however, it is well established by the decided cases that a solicitor can be punished under the existing provisions of the Acts if he has been guilty of dishonourable conduct which makes him unfit to be a member of an honourable profession and an officer of the court, and this is the rule which every solicitor desires to see enforced.
On Wednesday last the House of Lords resolved itself into committee for the purpose of considering the County Courts Bill, introduced by Lord LOREBURN. Naturally the discussion centred upon clause 1, which confers unlimited jurisdiction, subject to the right of removal, the rejection of which was moved by Lord HALSBURY. Owing to the tenuity of the House and at the request of Lord ST. ALDWYN, Lord HALSBURY withdrew his motion, giving notice at the same time that he would renew the matter on report. The discussion which took place demonstrates beyond the shadow of a doubt what will take place if clause 1 is passed into law and the rights thereby conferred are made use of to any Lord LOREBURN, in the course of his observations to the House, stated that if he could do anything to cheapen or simplify litigation in this country he would willingly do so and this was one method by which it could be done. He further stated that the Bill was brought forward in order to try to give poor people the chance of cheap litigation. Lord ST. ALDWYN, another supporter of the measure, laid stress on what he contended was "6 a very strong feeling in the country in commercial circles in favour of greater and cheaper facilities for dealing with litigation locally."
Now, what is the true position created by clause 1 of this Bill if the demand mentioned by Lord ST. ALDWYN really exists? Local commercial causes will all be taken to the County Court, and naturally the local commercial community will desire their causes to be fully and adequately heard. Even the most ardent supporter of the measure will hardly contend that this will lessen the work of the County Courts, and, as is well known, save in a few instances, those tribunals have as much work as-and in not a few cases a good deal more work than-they can dispose of at the present time. Under these circumstances it does not require any severe mental exercise to come to a conclusion as to what will happen to the poor people with small disputes who attempt to resort to these tribunals. The consent to the jurisdiction of the Registrar will become a compulsion if this small class of litigant does not desire to have adjournment after adjournment, and that with a long interval of time between each. To use the words of Lord ALVERSTONE: "With the greatest respect to the Registrars, the poor man wishes his case to be decided by a competent judge, just as a criminal likes to be tried by a judge rather than by a Commissioner."
ANOTHER point to which we desire to refer is the suggestion that this clause will cheapen and expedite litigation. Apart
from the block that will ensue when the cases are entered for trial the right of removal in the case of defendants who only desire to postpone the evil day of payment will afford them a useful means of delay; while at the same time the costs of litigation will be proportionately increased, both by the proceedings rendered abortive and also by the adjournments which will be rendered necessary.
ASSOCIATED with Lord HALSBURY in his opposition to clause 1 were Lord ALVERSTONE and Lord ROBSON, and their observations amply bear out the position we have taken up with reference to the extension of jurisdiction in this Bill and in its predecessors. Lord HALSBURY laid stress
on the fact that the clause would be particularly hard on the class of persons for whom the County Courts were originally intended, and he was absolutely accurate when he stated that the County Courts were supposed to be quick courts for poor people, and by extending the jurisdiction they would increase the delay, and defeat the object for which the County Courts had been established. These are the reasons which really lie at the root of the whole matter and constitute the determining factors of the opposition of the Bar to the change. The suggestion of Lord LOREBURN that this opposition is due to private interests is on a par with the suggestion that the pressure in the County Courts is due to the fact that the average number of days' work done by County Court judges amounts to but 153. We have before shown this figure to be misleading, and the innuendo in the statement made by the LORD CHANCELLOR: "Would the noble Marquis opposite or any busy man grumble at 153 days' work out of 365 ?" is unfair and throws an absolutely unjust aspersion upon a body of men who work as hard as anyone in the country. Incessant travelling, long hours, and no pension for men naturally getting on in years, certainly does not make the post of County Court judge the sinecure and bed of roses that Lord LOREBURN would have the public at large believe.
THE old practice, in accordance with which a Minister is in attendance on the KING in the event of his absence from the capital, from which there was on several occasions a departure in the last reign, was observed in the case of the visit of the KING to Ireland, Mr. BIRRELL being the Minister in attendance. In days gone by it had long been held that a Secretary of State must always accompany the Sovereign everywhere, and at a later period it became the practice that other members of the Cabinet as well as Secretaries of State should perform this duty in rotation. That Mr. BIRRELL, whose strict official style is that of "Chief Secretary to the Lord Lieutenant of Ireland," should be the Cabinet Minister in attendance on the Sovereign during his visit to that country, is a very significant indication of the augmented importance of that position, which can no longer be regarded in any other than a technical sense as subordinate or subject to the control of the Home Secretary, who was at one time the Cabinet Minister ordinarily responsible for advising and directing the conduct of the Irish Government. Sir WILLIAM HARCOURT, indeed, in the House of Commons, when Home Secretary, admitted the constitutional warrant for attaching this responsibility to the Secretary of State for the Home Department, but pleaded that "the details of Irish affairs did not pass through the Home Office," and it may now be safely said that an exercise of authority over the Irish Secretary is virtually confined to the Prime Minister and the Cabinet, of which he is himself a member in its collective
LORD MUSKERRY's notice that he proposes to draw public attention to certain curious features in the position occupied by merchant seamen under the circumstances set out by him may lead to some future arrangements being made to avoid inflicting serious injustice on a very deserving class. When Board of Trade inquiries are set on foot as to the cause of some maritime casualty, in which the seamen may not be very directly concerned, men called upon to give evidence are detained ashore, and a resultant condition of involuntary unemployment follows. They are also detained ashore and unemployed when summoned to serve on juries and when subpoenaed to give evidence at police courts and assize trials dealing with criminal offences on British merchant vessels. The Government are being earnestly pressed to give these matters their serious consideration, so that these inconveniences may be obviated, or, if such be impossible, then that some adequate compensation should be afforded for the
heavy loss sustained by these individuals in the interests of the public. At this point in the session it is impossible to suppose that any legislation could be introduced, but something might be possible by administrative means to take the edge off the grievances in question.
THE NAVAL PRIZE BILL AND THE
NEXT, with regard to the destruction of neutral prizes. No doubt the view taken by this country has been and is, that such destruction is always unjustifiable, but this view met with but scant support at the conference. Most of the Powers and nations there represented, insisted upon the right to destroy, and it is one that has been exercised of recent years, and would undoubtedly be exercised by those Powers and nations in any future war. It is said that the Declaration should not be ratified because of the artieles therein contained on this subject, as in such a case our right of "diplomatic protest" would be rendered of no avail, but it is morally certain that after the exchange of views at the Hague, no nation would forego this right on our diplomatic protests as neutrals, and the only way in which we could make our protests effective would be by war. If no ratification took place, apart from going to war, the sole remedy of the neutral would be only such redress as would be obtainable from the prize court of the belligerent.
Under the Declaration, as interpreted by M. Renault's report, sinking neutral prizes is forbidden, save under certain circumstances, and the rights of neutrals are provided with numerous safeguards, the subject being dealt with in the following articles :
48. A neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such port as is proper for the determination there of all questions concerning the validity of the prize.
49. As an exception, a neutral vessel which has been captured by a belligerent warship, and which would be liable to condemnation, may be destroyed if the observance of art. 48 would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time.
50. Before the vessel is destroyed all persons on board must be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship.
51. A captor who has destroyed a neutral vessel must, prior to any decision respecting the validity of the prize, establish that he only acted in the face of an exceptional necessity of the nature contemplated in art. 49. If he fails to do this, he must compensate the parties interested and no examination shall be made of the question whether the capture was valid or not.
52. If the capture of a neutral vessel is subsequently held to be invalid, though the act of destruction has been held to have been justifiable, the captor must pay compensation to the parties interested in place of the restitution to which they would have been entitled. 53. If neutral goods not liable to condemnation have been destroyed with the vessel, the owner of such goods is entitled to compensation.
54. The captor has the right to demand the handing over, or to proceed himself to the destruction of, any goods liable to condemns tion found on board a vessel not herself liable to condemnatics provided that the circumstances are such as would, under art. 49, justify the destruction of a vessel herself liable to condemnation. The captor must enter the goods surrendered or destroyed in the logbook of the vessel stopped, and must obtain duly certified copies of all relevant papers. When the goods have been handed over or destroyed, and the formalities duly carried out, the master must be allowed to continue his voyage.
The provisions of arts. 51 and 52 respecting the obligations of a captor who has destroyed a neutral vessel are applicable.
By the report it is made clear that the situation at the moment when the destruction takes place is to be the governing factor as to the necessity for such destruction, while the onus of proof which is placed upon the belligerent captor will afford a very real guarantee to neutrals against the wanton destruction of neutral prizes. In the first place the belligerent must make out exceptional necessity, and if this is not done he must under all circumstances pay compensation. In the second place, if this necessity is proved, then the validity of the capture must be shown, and under art. 40 a vessel cannot be condemned unless the contraband forms more than half the cargo. Two comments have been made upon this portion of the Declaration with which we cordially agree, and must be assented to by
every person considering the position as it now exists, and the change that will be brought about by the Declaration. Lord Lindley says: "The result is a compromise, and one which is better than having no rule at all, and better than leaving each nation to enforce its own law," while, after pointing out the undoubted gains to neutrals, he continues: "The new rules not only do not restrict the practice of this country when at war, but extend our rights if we choose to extend them." Mr. Arthur Cohen, K.C. also describes the law as laid down by the Declaration on this subject as "a compromise which, considering the great difficulty of the subject, is prudent, fair, and equitable."
We have now dealt with the two chief points dealt with by the Declaration which are attacked by its opponents, but it is further urged that no ratification should take place because no agreement has been arrived at with reference to the conversion of merchantmen into warships, and vice versa, on the high seas. Probably on no point under discussion has so much gross misstatement and misrepresentation been put forward, and it has been freely stated that the ratification of the Declaration without the prohibition of such a practice would be to revive privateering.
Now, what is the true state of affairs? The Declaration of Paris 1856 that "privateering is and remains abolished" still stands, and we ourselves intend to equip as warships such merchant vessels as we see fit. The sole point of divergence is that we insist that this must be done in port while other nations insist upon the right to effect such a change at sea, while, apart from this question of change, a Convention of the Hague Conference has been agreed relative to the subject which shows how absolutely unfounded in fact is the contention as to privateering being revived. That Convention provides as follows:
Whereas, however, the contracting Powers have been unable to come to an agreement on the question whether the conversion of a merchant ship into a warship may take place upon the high seas, it is understood that the question of the place where such conversion is effected remains outside the scope of this agreement and is in no way affected by the following rules :—
The provisions of the present Convention do not apply except between contracting Powers, and then only if all the belligerents ar> parties to the Convention.
In the face of this one can only consider that much that has been written and said on this subject must emanate from those who in their blind hostility have carefully refrained from informing themselves as to the proceedings and conventions of the conference. The Government has made it clear that they intend to act on their own view as to the legality of the place of conversion, and we have little doubt as to the position of the merchantman converted into a warship at sea and preying upon commerce, but reconverted at sea when located by a cruiser.
Such, then, are the chief points around which the controversy of the last few months has centred. Such questions as these ought to be kept strictly outside party politics, and those who have resorted to them for this end have done ill-service to the country. It has been made quite clear that this country will not ratify unless M. Renault's report is made binding on the
signatories as an authoritative interpretation of the Declaration to be administered by the international prize court.
With reference thereto Sir Edward Grey stated at the recent Imperial Conference, "it was accepted as part of the general agreement which was reached, as it constituted an authoritative interpretation of the provisions of the Declaration of London. That was another point which would be made a condition of ratification," and there is little doubt that, before such ratification takes place, certain further reservations on unsettled questions will be made by this country. On ratification by the various signatories, including ourselves, we shall be in no worse position as belligerents (and it must be remembered that the Declaration will not affect belligerents inter se), while as neutrals we shall certainly be better off.
OWING to the peculiar conditions obtaining in Ireland, it is not improbable that a proposal will be made that the administration of the State insurance scheme there will be intrusted to an Irish central authority. There is no doubt that in many ways industrial and agricultural conditions in Ireland differ very widely from those in England, and the administration from London of the measure, if it becomes law, would be attended by many difficulties, and would probably result in the whole of the Irish work being done by the officials in a branch office in Dublin. Accordingly the administration of the Act centrally in Dublin seems to have considerable advantages.
A CURIOUS situation has arisen in the Louth County Council through a misunderstanding that has taken place with reference to the election of the Sve representatives on the council from the borough of Drogheda. The misunderstanding took place in consequence of a dispute between the returning officer for the county and the deputy returning officer who was in charge of the Drogheda county electoral division. The returning officer had declared that no valid election had been held for Drogheda, and consequently no return was made by him to the secretary of the county council in respect of the Drogheda repreBentatives. None of the latter were present at the first meeting of the council, and in consequence of a protest that made by one of the councillors the meeting was adjourned without any business having been transacted. A deputation was delegated to wait on the Local Government Board with reference to the matter. The vice-president of that body seems to think that the election that took place was perfecely valid, and that the result of that election should have been acted upon by the returning officer. He stated that it was his opinion that the five gentlemen in question were entitled to act for the Drogheda electoral division, and he added that it was open to any ratepayer to object to them and bring a petition to have the question judicially decided.
HIS GRACE THE MOST REV. DR. CROZIER, the Irish Protestant Lord Primate, in preaching before Their Majesties the King and Queen, in St. Patrick's Cathedral, Dublin, on Sunday last, enunciated from the pulpit a fundamental conception of English kingship. Referring to the Royal presence, His Grace said, "Their Royal visit proves to us their kingship, that they are indeed 'kin to their subjects,' as the old word means." This position was thus explained and expounded by Professor Freeman. The word cyn or kin," he writes, we still keep in modern English with no change of sound, and with very little change of meaning. Now, whether the word cyning, which in ite shortened form has become king, comes straight from the English word cyn, is a matter of dispute among comparative philologers, but in any case the two words come from the same root. Let no one delude you into thinking that king has anything to do with the canning or cunning man. The man who first said that it had had simply not learned his old English grammar. I will not say positively whether cyning comes straight from the substantive cyn or from the adjective cyne, whether it is to be taken as the noble one,' or whether ing as the Teutonic patronymic cyning from oyn is to be taken as the offspring of the people, or whether our cyning is to be held as cognate with the Sanskrit ganakee, which means father. In all of these cases the word cyning comes from the same original root as cyn, the Latin genus, the Greek yévos." (Growth of the English Constitution, pp. 32 33.)
IN charging the grand jury at the Tipperary Assizes on the 6th inst. Mr. Justice Kenny paid a high compliment to the Borstal system. The only Borstal institution in Ireland is that which is in Clonmel. and the only association that has been established to supplement and complete the working of the system is the one that has appropriately had its origin in that town. Mr. Justice Kenny said: "I am glad to say that the results of the system have, up to the present, been eminently satisfactory, not only in England but also in Ireland, and no pains have been spared by those in authority at the Prisons Board in Dublin and in the Clonmel prison to make it Buccess. But these efforts must necessarily end with
the discharge of the prisoner either on the completion of his sentence or on his discharge on licence, and it is then that the beneficent work of the Borstal system is capable of being supplemented and, to a large extent, completed by voluntary benevolence outside of the prison and uncontrolled of official action." The president of the association in Clonmel is Mr. Richard Bagwell, the foreman of the grand jury, who takes a very keen interest in its growth and work. It is interesting to observe that the subscribers to the association are mainly Clonmel people, notwithstanding that many of the inmates of the prison come from the chief cities of Ireland. At present there are in Clonmel Gaol about seventy-one or seventy-two prisoners, and of those Dublin sent twenty, Belfast fifteen, and Cork seven. So that the work that the Clonmel people are carrying on is largely altruistic.
A PARLIAMENTARY return has been issued showing that the total statutory payments for 1910-11 in respect of the Ireland Development Grant Act 1903 were as follows: To the Public Trustee, £5000; to the Guarantee Fund to satisfy claims of the National Debt Commissioners (the 16th June 1910), £85,330 178. 5d.; to the Congested District Board, £20,000; to the Guarantee Fund to satisfy claims of the National Debt Commissioners (the 14th Dec. 1910), £74,669 2e. 7d. The payments made to the Guarantee Fund were in respect of losses or delayed payments under the Land Purchase Acts. A considerable portion of this money will probably be recouped. Another Parlia mentary return which has just been issued gives an abstract of the account of fines accounted for by the registrar of petty sessions clerks for the year 1909. These fines and penal sums are accounted for under the Act of 14 & 15 Vict. c. 90. It appears that during the year the total amount of fines (including compensation and cзste) amounted to £45,199 53. 10d. Of this sum £2216 153. 9d. was remitted by competent authority; £8752 15s. 9d. represented the amount for which parties were committed to gaol and not paid; and 14338 78. 10d. was uncollected for other causes. Of the total amount paid by respondents (£30,752 Os. 7d.), £7310 Os. 6d. was paid to corporate bodies and private parties; £986 11s. 1d. was paid to the Constabulary Force Fund; £9751 193. 1d. was paid to various parties as costs; £35 48. 2d. was paid for postage and money orders, and. £12,668 5s. 9d. was lodged in the Bank of Ireland.
COMMENTS ON CASES.
THE libel action remitted from the High Court to the London Sheriff's Court, by which Dr. Pocock, of Beaconsfield, was compelled in selfdefence to stop some unjustifiable proceedings by a rival doctor deserves a word of comment. The disciplinary powers of the General Medical Council are well known to all those in the medical profession, and, as a general rule, their exercise of those powers is attended by a great deal of benefit to the public at large. One of the regulations laid down by this "trade union" is that a doctor is compelled to meet another in consultation, and it is obviously a matter of great concern to all patients that their condition may be considered by such doctors as possess their confidence. The libel complained of in this case was to the effect that Dr. Pocock had violated this rule and had refused consultation. The publication of this statement was the more damaging inasmuch as it was not made to the General Medical Council, who could have examined into and adjudicated upon it, but was contained in letters written to two of Dr. Pocock's patiente. The cause of this attack was shown to be that Dr. Pocock had declined to take his rival into partnership. The UnderSheriff held that his rival had in conjunction with another person conspired to damage Dr. Pocock without the smallest justifcation, and judgment was given for £500 damages and coste. The case shows that in a profession such as a doctor's, those who believe they have any grievance should lay it before its governing body, and more especially can this be done where this council is concerned, for it is exceedingly powerful, and alert to punish infringement of its rules. There have been one or two recent cases-one notably concerned with the Sandow Institute-in which doctors have seemed to be treated more harshly by their own domestic tribunal than the facts warranted. Where one medical man, then, sees fit to make charges. against another by writing to patients, it is very arguable that the circumstance goes some way to prove malice.
THE decisions of the House of Lords, affirming those of the Court of Appeal, in the two workmen's compensation cases upon which we commented last week, related, as we then remarked, to seamen who were about to rejoin their ships and fell into the water while endeavouring to do so. Compensation was refused in both because the accidents that occurred were not shown to have arisen "out of the employment" within the meaning of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58). But, as we pointed out, had the seamen succeeded in getting on board once more, entirely different considerations would have presented themselves. If they had subsequently fallen overboard, the possible applicability of the recent decision of the House of Lords, affirming the judgment of the Court of Appeal, inOwners of the Ship Swansea Vale v. Rice (104 L. T. Rep. 658) would have required discussion. And it would have had to be determined whether the principles of that case, or of Bender v. Owners of the Steamship Zent (100 L. T. Rep. 639; (1909) 2 K. B. 41) and of Marshall v. Owners of the Ship Wild Rose 100 L. T. Rep. 739; (1909) 2 K. B. 465
affirmed on appeal, 103 L. T. Rep. 114; (1910) A. C. 486), was proper to be applied. In Rice's case (ubi sup.), the chief officer of the steamship Swansea Vale had duties to perform on deck that involved his getting into all sorts of dangerous positions from which a fall overboard, even on a calm day, might easily happen. In the course of his watch on deck, he disappeared mysteriously from the ship during a voyage in broad daylight, and at a time when the sea was smooth. There was nothing whatever to account for his disappearance, for no one saw what happened to him. But he had complained of not feeling well when he went on his watch, and of having had an attack of giddiness. Consequently the inevitable conclusion was that he had fallen overboard. He was on board the ship "in the course" of his employment, and, therefore, it could not be disputed that, if an accident had happened to him, the second requirement of sect. 1 of the Act was fulfilled. The House of Lords, taking the same view as the Court of Appeal, came to the conclusion that there was evidence from which the court might infer that the seaman fell overboard from an accident arising out of" as well as in the course of" his employment. In the two other cases, neither of the members of the crew who fell overboard was a "seaman in the strict sense of the term-that is to say, one whose duty it was to work on deck. And that circumstance had considerable weight with the Court of Appeal in deciding that a claim by the respective dependants of the deceased for compensation was not maintainable. In Bender's case (ubi sup ) the deceased was a ship's cook, while in Marshall's case (ubi sup.) he was an engineer. The duty of both was, therefore, to work below deck and not on it, as in the case of an ordinary deck hand. The general principle laid down in cases on the repealed Act of 1897, of which Pomfret v. Lancashire and Yorkshire Railway Company (89 L. T. Rẹp. 176; (1903) 2 K. B. 718) was a notable example, and repeatedly given effect to in subsequent cases such as McDonald v. Owners of Steamship Banana (99 L. T. Rep. 671; (1908) 2 K. B. 926), consequently came into operation. The only available evidence was no less consistent with the view that the accident arcse "out of," as well as "in the course of," the workman's employment than with the view that it did not do so. In Bender's case, the last that was seen of the ship's cook was when he was looking over the side of the ship during a voyage; in Marshall's case the engineer left his berth during the night for the purpose of getting some fresh air on deck. He was afterwards missing, and the following day his body was found in the tidal basin in the harbour where the versel was moored. Under these circumstances the Court of Appeal held in both cases that the onus cast on the dependants of proving that the accident arose "out of the employment" had not been discharged. No mere guess or conjecture would suffice: (see Barnabas v. Bersham Colliery Company, 103 L. T. Rep. 513). But in Rice's case (ubi sup.) it was only to be expected that the House of Lords would affirm the deci sion of the Court of Appeal that there was evidence to the required effect sufficient to justify the finding of the court.
REFERRING to the suggestion in "The Conveyancer" of the 1st inst, that when stock is transferred to the trustees of a voluntary settlement the transfer itself should be stamped with ad valorem duty at 10s. per cent. on the value of the stock, and the settlement itself be stamped with 5s. per cent. on suoh value, we are glad to hear from a firm of solicitors that they submitted two such documents for adjudication last month, and that the authorities stamped the transfer with 10s. per cent., and the settlement with a 10s. deed stamp only, and adjudged both daoumente to be duly stamped.
THE judgments of the Court of Appeal in the recent case of Re Coomber; Coomber v. Coomber (104 L. T. Rep. 517; (1911) 1 Ch. 723) invite special attention, as some of the diota rnn counter to the preconceived ideas of not a few practitioners, who have been under the impression that no one standing in a fiduciary relation to another could retain a gift made to him by such other if the latter challenged the gift within a reasonable time, unless the donee could prove that the donor had independent advice, or that the fiduciary relation had ceased for so long that the donor was under no influence whatever. In Re Coomber the facts were shortly as follows: A. C. for some years prior and down to his death, which took place in July 1905, carried on business as a retailer of beer at certain stores of which he had a long lease. His son H. C. for some years before his death acted as sole manager of the business. A. C. by will left all his property to his wife, who survived him absolutely. A. C. in his lifetime had expressed a wish that H. C. should have the business, and after A. C.'s death H. C. continued to manage the business for his mother, and he also collected certain rents for her. In Sept. 1905 Mrs. C. voluntarily assigned the lease of the stores and the good will of the business to H. C., and the licence was also assigned to him. The assignment was prepared by Mrs. C.'s solicitor, who acted for her in relation to her, husband's estate and who explained the draft to her, and saw that she understood what she was doing, but he gave no advice as to whether she should do it or not. She died in July 1906, and the action was brought by her eldest son against H. C. and his sister for a declaration that H. C. was a trustee of the lease, business, and licence for the persons interested in Mrs. C.'s residuary estate, on the ground that H. C. was in a fiduciary position, and that Mrs. C. had not sufficient independent advice. Mr. Justice Neville dismissed the action on the ground that the gift was to be attributed to Second Sheet.
natural affection and not to any fiduciary relationship, and the Court of Appeal upheld that decision, but on wider grounds. In the course of his judgment Mr. Justice Neville said: "H. C. 8, however, in the position of agent for his mother in carrying on the business before assignment. I think, therefore, that the burden o proof is upon him to rebut the presumption that the gift was induce ! by that relation." Cozens-Hardy, M. R. in his judgment respectfully differed from that statement. He did not think it was true to say that any confidential relation between donor and donee was sufficient to set up a presumption against the validity of the gift. He thought that there were confidential relations in which there was a presump. tion of undue influence as in the case of solicitor and client, or where young persons immediately after attaining twenty-one make a gift to a parent, but to apply that to every fiduciary relation was not according to any authority and distinctly contrary to principle, and was in fact negatived by Lord Eldon in Harris v. Tremenheere. Lord Justice Fletcher Moulton said that the interference of the court in these transactions must depend on the nature of the fiduciary relation. His remarks upon what amounts to competent and independent advice will be useful to solicitors. His Lordship said: "I think that a solicitor best gives advice when he takes care that the client understands fully the nature of the act and the consequences of that act. He is not bound to say, 'I will advise you to do it,' or 'If I were you I would do it,' or If I were you I would not do it.' Nothing of that kind is, necessary for competent and independent advice. All that is necessary is that some independent person free from any taint of the relationship or of the consideration of interest which would affect the act should, put clearly before the persons what are the nature and the consequences of the Act. It is for adult persons of competent mind to decide whether they would do an act, and I do not think that independent advice means independent and competent approval." The learned judge said that he was referring only to adults who were competent to form an opinion, so that his remarks will not, it is conceived, affect the principles laid down in Powell v. Powell hereinafter referied to under circumstances which there existed. Lord Justice Buckley, in the course of his judgment, said: "Between master and servant, between employer and bailiff or steward, there subsists, of course, a fiduciary relation, but there is no authority for the proposition that by reason of the existence of relations such as those a deed of gift from one to the other can be set aside. This doctrine of equity does not rest upon the existence of a fiduciary relationship whatever be its nature. It rests upon the existence of such a fiduciary relationship as will lead the court to infer undue influence, or knowledge in the one party concealed from. the other, or other circumstances into which I need not go. Harris v. Tremenheere (15 Ves 34) was a bill to set aside certain leases obtained by an agent and attorney from his principal. Lord Eldor, in the course of his judgment, said: "I cannot find any decision authorieing. me to say that the defendant should not have taken these leases as oi the pure gift of his employer. I am quite ready to say that if I could find in the answer or the evidence the slightest hint that the defendant laid before the testator any account of the value of the premises that was not perfectly accurate, that would induce me to set them aside, whatever the parties intended, upon the general ground that the principal never would be safe if the agent could take a gift from him upon a representation that was not most accurate and precise. There is no evidence of misrepresentation, circumvention, or anything improperly leading the testator to make these leases; that they were not the spontaneous fruit of his own generosity, not weighing the value or amount of the consideration that should have been given if it had been the subject of barter." Powell v. Powell (82 L. T. Rep. 84; (1900) 1 Ch. 243) was the case of a voluntary Bettlement made by a lady who had recently come of age in favour of her guardian, and in that case Lord Justice Farwell (then Mr. Justice Farwell) held, that it was not enough that she should have indepen-. dent advice, unless she acted on it, and that it was the duty of the solicitor independently advising her to protect her against herself, and not merely against the personal influence of the donee, and that if his advice was not accepted, he should decline to act further for the intending settlor.
MISCELLANEOUS PRECEDENTS (continued).
Deed of Partilion of Freehold Messuages and Easements between Coheiresses
THIS INDENTURE made the
191 in the county of in the county of in the county of day of
BETWEEN of the
WHEERAS by an indenture dated the 189 and made between H. C. of the one part and S. H. of the other part the hereditaments respectively described in the first and second schedules hereto (together with the rights of way and easements mentioned in the third schedule hereto but subject to the reservation therein also mentioned) were limited and assured unto and to the use of the said 8. H. in fee simple and subject to a covenant by the said S. H. to observe and perform the covenants and conditions contained in the indenture of the day of mentioned in the said third schedule so far as the same related to the hereditaments thereby assured as were then subsisting and to indemnify the said H. C. his heirs and assigns in respect of the
AND WHEREAS the said S. H. duly made his will dated the 189 and thereby devised and bequeathed all the