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FOSTER, GUSTAVUS THOMAS EDWARD (described in the receiving order as Gustavus Foster), late Essex-rd, Islington, licensed victualler. Ct. High Court. July 4.
FRANKLIN, HENRY JOHN, Southsea, butcher. Ct. Portsmouth. July 3. GUILBERT, JOHN LEESAM (trading as the British Engineering Company), Nottingham, engineer. Ct. Nottingham. July 5.
GOTTLIEB, SELIGMAN, Whitehorse-la, Mile End, baker. Ct. High Court. July 3.
HARRIS, FREDERICK HENRY MARK (trading as F. H. Mark Harris and Co.), Penryn, tobacconist. Ct. Truro. July 3.
HAILES, WILLIAM HENRY, Portsmouth, licensed victualler. Ct. Portsmouth. July 4.
HARDACRE, ROBERT, Bradford, newsagent. Ct. Bradford. July 5.
MARKLEW, SARAH, Cannock, beerhouse keeper, widow. Ct. Walsall.
MCADAM, SUSAN KATE, and MCADAM, MARGARET EDITH, Upper Norwood, spinsters. Ct. Croydon. June 30.
MORTIMORE, CHARLES EDWARD, Exeter, greengrocer. Ct. Exeter. July 4. MCDONALD, EDWIN JAMES, Kingston-upon-Hull, insurance manager. Ct. Kingston-upon-Hull. July 3.
NEW MAN, HERBERT VICTOR. Keymer, carpenter. Ct. Brighton. July 4. PLATT, JOHN, late Acton Bridge, wheelwright. Ct. Nantwich and Crewe, July 3.
RANDALL, ALBERT ALFRED, Swansea, bootmaker. Ct. Swansea. July 5. RICHARDSON, WILLIAM HODGSON, Bootle, farmer. Ct. Whitehaven and Millom. July 3.
RATCLIFFE, JOSEPH WILLIAM, Sutton Bridge, chemist. Ct. King's Lynn. July 5.
STROUD, GEORGE JOHN, Thanet, coal dealer. Ct. Canterbury. July 3. SPRING, OSMAN VICTOR, Cheltenham, late commercial traveller. Ct. Cheltenham. July 4.
SEAMAN, HERBERT OSCAR, late Cardiff, photographer. Ct. Leeds. July 3. SMITH, ALBERT WILLIAM (known as Smith, Albert), Liverpool, certified accountant. Ct. Liverpool. July 5.
TAYLOR, EDMUND JOHN, late Approach-rd, Victoria Park, managing
WALKER, JOHN TYRWHITT (in the receiving order described as J. Pyrwhitt
Amended notice substituted for that published in Gazette, April 21. COVEY, CHARLES EDWARD (described in the receiving order as Dr. C. G. Covey), Howland-st, Fitzroy-sq. Ct. High Court. April 11.
Amended notice substituted for that published in Gazette, May 19. FLACK, LUDOWICH (described in the receiving order as Lewis Flack), late Carnaby-st, Golden-sq, working tailor. Ct. High Court. May 17.
Amended notice substituted for that published in Gazette, June 27. DOUGHTY, MABEL LAURA (late trading as Mabel L. Mee), Nottingham, stationer. Ct. Nottingham. June 21.
Amended notice substituted for that published in Gazette, July 4. TOBIN, ARTHUR WALTER (described in the receiving order as Athwould Walter Tobin), late Mile End-rd, auctioneer. Ct. High Court (transferred from the County Court of Dorsetshire, holden at Poole). June 29.
GAZETTE, JULY 11.
BIBBY, JOSEPH, Knighton, farmer. Ct. Nantwich and Crewe. July 7. BAKER, ARTHUR WILLIAM, Middlesbrough, grocer. Ct. Middlesbrough. July 8.
BROWN, PHILLIP JACK (trading as Ph. Brown and Co.), Manchester, merchant. Ct. Manchester. July 7.
BOWLES, WILLIAM CHARLES, Great Yarmouth, late fishing boat owner. Ct. Great Yarmouth. July 7.
BURRELL, ROBERT, Great Yarmouth, cooper. Ct. Great Yarmouth. July 8.
BANGAY, WILLIAM JOHN, Lowestoft, builder. Ct. Great Yarmouth. July 8.
BATCHELAR, FREDERICK WILLIAM, Carshalton, director of a public company. Ct. Croydon. July 6.
BOYCE, ERNEST PETER, Bury St. Edmunds, coal merchant. Ct. Bury St. Edmunds. July 7.
BEWICKE, IVAN CALVERLY EDWARD, Albemarle-st, gentleman. Ct. High Court. July 6.
COOK, EDWARD SAMUEL, South Lambeth-rd. Ct. High Court. July 6. CLARKE, JOHN WILLIAMSON; HAYNES, JOHN HENRY; and SHARPE, LORENZO THEOPHILUS SAMUEL (trading as Clarke and Haynes), Raunds, boot manufacturers. Ct: Peterborough. July 7.
CLARKE, HARRY, Manchester, shed foreman. Ct. Manchester. July 7. EMMOTT, ALBERT JOHN, Southport, director of a limited company. Liverpool. July 6.
FALSHAW, FREDERICK, late Warrington, glazier. Ct. Warrington. July 6. FARROW, THOMAS, Saffron Walden, hay dealer. Ct. Cambridge. July 7. HUGHES, THOMAS. Liscard, builder. Ct. Birkenhead. July 6
HARRIOTT, ANN ELLEN (described in the receiving order as Ann Harriott), Aston, boot dealer. Ct. Birmingham. July 7.
HCRNIBROOK, WILLIAM HENRY, Gerrards Cross, surgeon. Ct. Windsor. July 8.
LOCKWOOD, GEOFFREY FAIRFAX, Harrogate, auctioneer. Ct. York. July 7.
MILBURN, SIDNEY SEPTIMUS (late trading as William Milburn and Son),
MESSOM, JOHN FREDERICK MASON (trading as Frederick Messom), Nottingham, builder. Ct. Nottingham. July S.
PEARCE, THOMAS JOHN, Michelde ver Station, coal merchant. Ct. Winchester. July 8.
QUINCEY, GEORGE PATTINSON, Leicester, late grocer. Ct. Leicester. July 8.
RCBINS, SYDNEY ARTHUR, Windsor-rd, Forest Gate. Ct. High Court. July 6.
SA ERDON, FREDERICK ARCHIBALD, late Richmond, job master. Ct. Wandsworth.
SCOTT. ALFRED. Manchester, fruit salesman. Ct. Manchester. July 7. TECMPSON, WILLIAM, March, tailor. Ct. Peterborough. July 6.
VENABLES, CUTHBERT EDWARD, New Broad-st, company secretary.
High Court. July 6.
WEST, FRANCIS EDWARD, late Ropemaker-st, financier. Ct. High Court.
WALKER, WILLIAM, Easington-la, co. Durham, saddler. Ct. Durham.
BIRTHS, MARRIAGES, AND DEATHS.
FIRTH. On the 30th ult., at 9, Westcliff-ter, Preston, the wife of Ernest
ATHERLEY-JONES-WALKER.-On the 29th ult., at St. Margaret's Church,
GAYE WILSON-On the 5th inst., at St. Michael's, Minehead, Arthur
HANFORD BROWNE. On the 5th inst., at St. James's Church, Wey-
WATERS BAGULEY.-On the 4th inst., at the Parish Church of St. Marylebone, Charles Preston, second son of Mark Waters, of Putney, and Lincoln's-inn-fids, and Mrs. Waters, to Mary Kate, only daughter of the late Alfred Clayton Baguley and Mrs. Baguley, of Hanover House, Regent's Park. DEATHS.
CAUTHERLEY.-On the 30th ult., at his residence, 10, Hollin-la. Far Headingley, Leeds, Charles Cautherley, Registrar of the Leeds County Court, in his sixty-sixth year.
DICEY. On the 7th inst., at 2, Gray's-inn-sq, Edward Dicey, C.B., aged 79. ORGAN. On the 3rd inst., Thomas Arthur Organ, Barrister-at-law, aged 52 years, of 23, Whitehall-pk, Highgate.
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THE TO READERS AND CORRESPONDENTS... 261 LEADING ARTICLES.-Topics of the Week-Covenants Binding Chattels 261 IRISH NOTES.....
The eldest son of our grandchildren"-"Other heirs who may still be born"—Fidei-commissum 721 CANADIAN PACIFIC RAILWAY COMPANY . CORPORATION OF TORONTO AND OTHERS.-Law of CanadaCanadian Railway Act 1906Powers of Railway Board............... 724 SUPREME COURT OF JUDICATURF. COURT OF APPEAL. MACCLESFIELD CORPORATION v. GREAT CENTRAL RAILWAY COMPANY. - Highway Repair Liability-Highway carried over canal by new bridge .... .................... ......... 728 THE WESTCOCK. Admiralty Towage contract-Defect in tug causing loss to tow-Warranty of mess-Duty to use reasonable care to provide a filt tug
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COMMENTS ON CASES............................................................ THE CONVEYANCER...
LEGISLATION AND JURISPRUDENCE.— Topics PARLIAMENTARY SUMMARY- Tonics 273 FOREIGN LAW. Succession of a Foreigner in France CRIMINAL LAW AND THE JURISDIOTION OF MAGISTRATES.-Borough Quarter Sessions-Topics-County of London Quarter Sessions: Guardians of Parish of Paddington (apps.) r. Guardians of Parish of St. Matthew, Bethnal Greea (resps.) COUNTY COURTS.- Sittings of the Courts. 27 8 GENERAL INTELLIGENCE.-Grotius, and the Movement for International Peace -The Commonwealth Land Tax-Birkbeck Bank Loans-Heirsat-Law and Next of Kin-Appointments under the Joint Stock Winding-up Acts-Creditors under Estates in Chancery-Creditore under 22 & 28 Vict c. 35 PROMOTIONS AND APPOINTMENTS LAW SOCIETIES.-Society of Public Teachers of Law
Supplement: One Hundred Reminders for Death Duties.
The Law and the Lawyers.
THE vacancy created by the death of the late Judge BACON was a difficult one to fill, but we think the Profession will agree that the Lord Chancellor's appointment of Mr. CLUER to the Whitechapel and Bloomsbury County Courts is a good one. For many years past Mr. CLUER has presided at the Worship-street and afterwards at the Old-street Police-court, where the disputes of many of our alien population come up for decision, and he therefore will be able to enter upon his duties at Whitechapel with a considerable knowledge of the class of persons between whom he will have to adjudicate. Of the appointment of Mr. PICKERSGILL, on the recommendation of the Home Secretary, to be a metropolitan police magistrate in the place of Mr. CLUER, one can only say that political exigencies have not been entirely absent.
IF any evidence were wanted against the practice of allowing Chief Constables to act as advocates in police prosecutions, it will be afforded by a perusal of the accounts of the recent events in the Blackpool Police-court as reported in the local Press. We do not for one moment doubt that the Chief Constable in question conducted the cases in which he appeared to the best of his ability, but, at the same time, it is certainly not conducive to the best administration of justice that a layman should be permitted to conduct prosecutions and act as police advocate. The questions that must arise as to the admissibility of evidence and the inability of one who has not had a legal training to appreciate the ill-effect of leading questions, especially in criminal matters, makes it imperative that the conduct of police cases, where an advocate is necessary, should be in legal hands. Of recent years a good many cases have been brought to our notice of Chief Constables thus acting as advocates, and it is certainly time that those who are responsible for police prosecution; should relieve these officers of this duty.
LAST week, in the debate on the County Courts Bill, Lord LOREBURN severely criticised the Bar; but this week, in the preliminary discussion in the House of Lords as to land transfer, the other branch of the Profession, and particularly the Law Society, were the objects of the Lord Chancellor's strictures. That the present system of conveyancing is unsatisfactory no one can deny, and the Law Society have been very active in their efforts to put forward legislation for its improvement, but no remedy was provided by the present system under the Land Transfer Acts, which merely imposed an additional cost on the transfer of landed property. For the Lord Chancellor to suggest that the reason why no single county had asked for the Land Transfer Act to be applied to their area was because the solicitors who had to give advice to the county councils had invariably advised against the extension of the system merely shows that the Lord Chancellor must be singularly misinformed as to the type of men who occupy seats on those bodies. Landed proprietors and business men know well enough whether any change of this description will be for their benefit, and they are not likely to adopt a system that will merely add to expense and give no corresponding advantage.
WE have very grave doubts as to the accuracy of the Lord Chancellor's figures as to the proportion between the Government charges and the solicitors' costs for the transfers of landed property. He stated that it had been "estimated by a very high authority" that the former amounted to but one million sterling per annum, while the latter was four times as great. Of course we have no opportunity of considering the value of the estimates given by this "high authority," but it must be borne in mind that these solicitors' costs have for thirty years been regulated by statute, and that the scale permitted, having regard to the work involved, can in no way be considered excessive; while, apart from other Government charges, the fees of the Land Registry Office have been fixed and altered merely for the purpose of attempting to make that department a paying concern.
THE temperate criticisms of Lord ST. ALDWYN, who was president of the Royal Commission, are worthy of serious consideration. It must be remembered that the opposition of solicitors to the present system of land transfer is entirely due to the increased cost thereby imposed on their clients, and Lord ST. ALDWYN points out that the serious difficulties in the way of any new system of land transfer are inherent in the nature of landed property itself. As he stated, it was not to be expected that under any conceivable system land could be passed from hand to hand as stocks and shares were transferred, and the great defect of the system hitherto had been that, as a rule, absolute title had not been given, but only possessory title. The truth of the matter is that under the present system of land transfer, which it is sought to inflict on the whole of England, there is no finality, and it merely imposes an additional cost on landowners with no corresponding advantages. This has been appreciated by the Legal Profession, and it has merely done its duty in bringing this fact before the public. The whole matter is not nearly so easy as Lord LOREBURN and Lord HALSBURY would have the country at large believe, for, as Lord HALDANE pointed out, land transfer might be easy in Australia and New Zealand, but it was troublesome in an old country like this owing to the complication of boundaries and interests associated with land,
NEXT Tuesday the County Courts Bill is to come up on report in the House of Lords, and, apart from clause 1, which we dealt with at some length last week, we shall await with some interest the explanation of the Lord Chancellor as to how
litigation in those tribunals is cheapened and expedited by the clause which deals with appeals. Sub-clause 3 of that clause, which is to make all appeals to be heard by a single judge of the High Court, is new, and was not contained in the Bill of 1909. By that, if the single judge of the High Court upholds the County Court judge-appeals in matters over £50 being both on fact and law-that is to be final, unless the High Court judge or the Court of Appeal gives leave for the matter to go further. If the High Court judge, however, differs from the County Court judge, the right of appeal is unrestricted. As we stated in March last, this method of appeal to a single judge will certainly not be acceptable to litigants, and although, if these tribunals are to be diverted from the duties for which they were created, a full right of appeal must be given, this certainly should be to a Divisional Court, and not from one judge of first instance to another.
COVENANTS BINDING CHATTELS.
THE case of National Phonograph Company of Australia v. Menck (104 L. T. Rep. 5; (1911) A. C. 336) is one of the greatest importance on the subject of covenants restricting the use of chattels in the hands of their owners. The judgment of the Privy Council, delivered by Lord Shaw of Dunfermline, not only brings the law in Australia into harmony with the law in the United Kingdom, but states clearly for the first time in an appellate court what has hitherto only been laid down incidentally and by judges of first instance. The subject-matter of this important judgment is the distinction that exists between ordinary chattels and chattels that are covered by a grant of patent rights, with respect to the possibility of enforcing restrictive covenants as to their use in the hands of successive owners. The distinction, which has gradually emerged in the shape cf a definite rule of law, really amounts to this: that the doctrine of Tulk v. Moxhay applies to patented articles-chattels produced under the protection of a grant of patent rights-as well as to land. The question in Tulk v. Moxhay (2 Ph. 774) was, in the words of Lord Cottenham, "not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.' Purchasers of ordinary chattels do not take subject to any covenants which the court can enforce on the ground that these have been entered into by their vendors: (see Taddy v. Sterious, 89 L. T. Rep. 628; (1904) 1 Ch., at p. 358; approved in the Court of Appeal, 91 L. T. Rep. 678; McGruther v. Pitcher, (1904) 2 Ch. 306). This general rule as to chattels cannot any longer be said to apply to patented articles.
The relevant facts in National Phonograph Company of Australia v. Menck were these: The plaintiffs (appellants) were an Australian company and the assignees of patents for Edison phonographs and accessories, the patents being granted under the Australian Commonwealth Act (the Patents Act 1903), the provisions of which for the present purpose do not differ from those of the English Act (the Patents and Designs Act 1907). The defendant (respondent) was a retail dealer in phonographs, who carried on business in Australia. The plaintiffs' goods were sold directly by them to wholesale and retail dealers only, and not to the general public. Further, these goods were sold only to persons whose names were placed on special lists, and who entered into agreements not to sell at less than specified prices, and, in the event of their names being removed from these lists, not to deal in or use the plaintiffs' goods at all. The plaintiffs brought their action in the High Court of Australia against the defendant, alleging that he had sold goods at less than the proper prices and had, after his name was removed from the list, dealt in and used these goods. They claimed an injunction and damages. It was found as a fact at the trial of the action that the defendant had not sold goods at less than proper prices, but had dealt in these goods after his name had been removed from the plaintiffs' list. The questions of law arising upon this finding were reserved for the full court's consideration, and the case was argued before the full court of five judges.
The plaintiffs' case consisted of two parts-a claim based on breach of contract, and a claim based on infringement of patent righte. The judges in the Australian court were divided in opinion, but the decision as a whole was (by a majority of three to two) in favour of the defendant. Three judges held that defendant's name should not have been removed from the list, that he was at liberty to deal in the plaintiffs' goods free from any restriction after bis name had been removed, and that this dealing was not an infringement of the plaintiffs' patent rights. One judge held that the dealing impugned was an infringement of the patent rights, and that the statute law now allowed a condition of inalienability to be attached to chattels irrespective of any question of notice. [Lord Shaw in his judgment attributes this opinion to two judges, but this is erroneous.] One judge held that there had been no infringement of patent rights, and that restrictive conditions could not be attached to chattels, but also held that there had been a breach of contract on the part of the defendant. From the decision of the Australian court the plaintiffs appealed by special leave to the King in Council.
The result of the appeal is that the decision below has been reversed, and the plaintiffs' claim for an injunction held good. The striking feature of the Judicial Committee's decision is that, notwithstanding the reversal of the decision of the majority, the views of the minority of the court are not accepted as sound. Lord Shaw says, referring to the two propositions supported respectively by majority and minority, "in their Lordships' opinion both propositions are unsound."
Lord Shaw deals successively with the two parts of the case. judgment agrees, with respect to the claim relating to breach of contract, with the judgment of the majority of the Australian court in coming to the conclusion that there had been no breach of contract, and that the dealings impugned could not be impugned as violation of the contract between the defendant and the plaintiffs. It is with respect to the claim relating to infringement of the patent rights that the propositions of both majority and minority are held to be "unsound," and it is this portion of the judgment of the Judicial Committee which gives the judgment as a whole its value.
The two "unsound" propositions were, in effect, as follows: On the one hand it was maintained by the appellants that they could, as owners of the letters patent, sell their goods with a condition attached in such a way that a limited right to deal with them would run with the goods in the hands of all persons, irrespective of whether those persons had notice or not of the limited rights of dealing. On the other hand, it was maintained by the respondent that a patentee imposing conditions upon the use or sale of his patented articles is not entitled to enforce such conditions against a subsequent purchaser apart from any contract with the subsequent purchaser. The true rule of law lies somewhere between these two views, and the Judicial Committee's judgment proceeds to elucidate it. The general principle of the liberty of an owner of ordinary goods to use and dispose of them is not in question: "The real point of difficulty is the enforcement of that principle without impinging upon something elsenamely, the right of property granted by the State and by way of monopoly to a patentee." But it is perfectly possible to adjust the incidence of ownership of ordinary goods with the incidence of ownership of patented goods in suon a manner as to avoid any collision of principle.'
The adjustment is made, without having recourse to any novel doctrine of conditions running with goods, by recognising " that the general doctrine of absolute freedom of disposal of chattels of an ordinary kind is, in the case of patented chattels, subject to the restriction that the person purchasing them, and in the knowledge of the conditions attached by the patentee, which knowledge is clearly brought home to himself at the time of sale, snall be bound by that knowledge and accept the situation of ownership subject to the limitations." The rights of the patentee and the rights of the owner are thus harmonised. That these principles are not novel Lord Shaw proceeds to show by referring to the line of cases extending from Betts v. Willmott (L. Rep. 2 Ch. 239) down to McGruther v. Pitcher (sup.), the result of these cases being summed up as follows: First, that it is open to a licensee by virtue of his statutory monopoly to make a sale sub mcdo or accompanied by conditions which would not apply in the case of ordinary chattels ; secondly, that the imposition of these conditions in the case of a sale is not presumed, but, on the contrary, a sale having occurred, the presump. tion is that the full right of ownership was meant to be vested in the purchaser; while, thirdly, the owner's rights in a patented chattel will be limited if there is brought home to him the knowledge of conditions imposed, by the patentee or those representing the patentee, upon him at the time of sale."
In the present case the defendant, though acquitted of any breach of contract, had, by entering into contractual relations with the plaintiffs, obtained knowledge of the conditions on which they sold their goods, and therefore could not plead that the existence of these conditions had not been brought home to him. The plaintiffs were therefore entitled to the injunction for which they asked.
In conclusion, the general principle is thus stated in the Judicial Committee's judgment: "A restriction rests upon a purchaser of goods which are covered by a grant of patent, and which have come into the possession of a purchaser in the full knowledge of the restrictions imposed by the patentee upon their disposal." But this is the doctrine of Tulk v. Morhay, which now, it would seem, must be held to apply to patented chattels.
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NOTICE OF REMOVAL.-The Sanitary Engineering Company. Domestic Sanitary Engineers, after thirty-six years occupation of 65, Victoria-street, have removed their offices to No. 2, Army and Navy-mansions, 115, Victoria-street, Westminster (corner of Francis-street). 'Phone: Westminster 316. Telegrams: "Sanitation," London.-[ADVT.]
HALLILAY'S CONVEYANCING.-A concise Treatise on the Law and Practice of Conveyancing, together with the Solicitors' Remuneration Act 1881, and General Order 1882, and the Land Transfer Acts 1875 and 1897, and the Rules and Orders thereon. Second Edition, price 18s., 750 pages.-HORACE Cox, "Law Times" Office, Windsor House, Bream's-buildings, E. C.-[ADVT.]
THE Bray Old Age Pension Committee has made an order recommending that a pension should be given to an old gentleman who is a member of the Bray Urban District Council, and the point will arise as to whether this gentleman, being in receipt of a pension, can remain a member of the council and take part in the administration of the affairs of the town. The applicant has been for sixty years a resident in Bray, where he had oarried on business as a butcher.
PARLIAMENT is again taking an interest in the issue of Irish Land Stock. One of the members recently drew attention to the fact that, while the security afforded by national guarantee in the case of Two and Three-quarters and Three per Cent. Irish Land Stock is fully equal to that afforded in the case of Two and a Half per Cent. Consolidated Stock, the price of the former is, proportionately to the interest given, considerably lower than the price of the latter. It was suggested that a statement should be made on behalf of the Government that "under no circumstances would Irish Land Stock be issued with other than the full guarantee that it now enjoys." It was pointed out that the credit of the various stocks which directly or indirectly possess the guarantee of the Consolidated Fund could not be regarded as other than equal, but that there were various reasons, often connected with the existence of opportunities for ready sale, which induces the market to show a preference for one or other of them. There have been no recent public issues of Irish Land Stock, and it is probable that any issues that may be made in the near future will be taken up by the State
MR. JUSTICE FITZGERALD gave judgment on the 13th inst. in Dublin in the first of a series ot applications to have fair rents fixed for a third statutory term. Fair-rent fixing began under the Landlord and Tenant Act 1881 in that year, the statutory term being a period of fifteen years. Second statutory terms began to be fixed in 1896, and the Act of that year provided, amongst other things, that thenceforward in every fair-rent case a schedule should be filed setting out certain particulars, including particularly a list and description of the improvements established as having been effected by the tenant on the holding. The result of fair-rent fixing for first statutory terms was an all-round reduction of 21 per cent. in the rents dealt with. There has been a further reduction of about 19 per cent. on the fixing of second statutory terms. The time for the fixing of third statutory terms has now arrived, and Mr. Justice Fitzgerald stated on the 13th inst. that the judicial rent payable by a tenant on such an occasion must be determined by the court on the same principle and in the came manner as in the cases of first and second statutory terms. An important question which was considered by his Lordship was the effect to be given to the schedule filed under the Act of 1896, on the fixing of the second term. It was argued that there was an estoppel by record which prevented the court investigating the correctness of any item in the schedule. The learned judge considered, however, that this proposition could not be accepted in its entirety; but he thought that the court must attach great weight and considera. tion to all such schedules, although he did not regard the tenant as being absolutely bound by them.
THE long litigation with reference to the right of fishing in Lough Neagh terminated in the House of Lords on the 14th inst. in a judgment in favour of the plaintiffs (the lessees) and against the fishermen. It will be recollected that the case was argued twice in the House of Lords. On the first occasion the members of the court were Lord Loreburn, Lord James of Hereford, Lord Ashbourne, and Lord Dunedin. It is understood that on that occasion there was an equal division of the court. On the second argument, the court consisted of Lord Halsbury, Lord Ashbourne, Lord Macnaghten, and Lord Dunedin,
who gave the judgment of the court, holding that the ordinary law a8 to the right of the public to fish in non-tidal waters applied to large inland seas like Lough Neagh equally with rivers and lakes, and that the doubt expressed by Lord Cairns in Bristow v. Cormican (L. Rep. 3 App. Cas. 641) as to this matter was groundless. They decided, further, that the title of the plaintiffs to the fishing in Lough Neagh, dating from the patent in 1603 from James I. to Sir Arthur Chichester at the time of the Plantation of Ulster, was complete, and had been sufficiently proved. An injunction therefore was granted against the fishermen. On the other hand, Lord Loreburn, Lord Shaw, and Lord Robson dissented. They assumed that the law as to non-tidal waters was the same in the case of large inland seas as in the case of ordinary rivers and lakes; but they held that, in view of certain suspicious circumstances connected with the early deeds on which the plaintiffs' title depended, and of the fact that for 300 years the plaintiffs and their predecessors had never sought to enforce their supposed rights in Lough Neagh, the plaintiffs had not established their title. The case, which is said to affect 3000 fishermen around the shores of Lough Neagh, is one of the most remarkable pieces of litigation of the century, and the way in which it has terminated in the House of Lords is not the least remarkable aspect of the matter. From a historic point of view also the case is full of interest. It involved a consideration of the circumstances under which the lands of the Ulster chieftains were forfeited in the sixteenth century and conveyed by James I. to the English and Scottish planters. As a matter of fact, the defendants in the case
are the lineal descendants of the dispossessed "Irishry," and the plaintiffs were able to establish their right from the time of the original patent to Sir Arthur Chichester, who was one of the most important of the planters The case also illustrates the rule of law that no length of time, however long, is sufficient to establish the right of the public to fish in non-tidal waters.
COMMENTS ON CASES.
THE case of Re Earl de la Warr's Settled Estates (noted ante, p. 244) is another very valuable accession to the long line of improvements judicially authorised as fit matter for the expenditure of capital moneys. It will be seen that the tenant for life of settled estates sought the court's sanction to the trustees laying out a large sum on a golf course and clubhouse. Sect. 25 of the Settled Land Act 1882 contains a long catalogue of an illustrative nature of the classes of improvements authorised, and amongst them we find, numbered (xvii.), "gardens or other open spaces for the use, gratuitously or cn payment, of the public or of individuals the same being necessary or proper in connection with the conversion of land into building land." Then in (xviii.) there is added: "Other works necessary or proper in connection with any of the objects aforesaid." The facts of the case indicate that the provision of a golf course would tend to popularise the neighbourhocd, and in this somewhat indirect manner would assist the conversion of property near large towns into building areas. Mr. Justice Eve has sanotioned the expenditure of £2000 on the course and £4000 on the clubhouse, the latter sum to include the architect's fees. We have no record of any prior application on behalf of a golf course, but Re Orwell Park Estate (116 L. T. Jour. 267) was decided on the same subsection (xvii.), and by it a cricket ground was sanctioned, but it iз rather noteworthy that the court declined to sanction the pavilion as an addition to arable land so laid out. It seems rather difficult to quite understand the reasoning which refuses the latter equivalent to a golf clubhouse unless it be the modifying effect of the lapse of over seven and a half years since the earlier decision was pronounced. Glancing through a catalogue of judicially authorised works, we find, amongst the less obvious improvements sanctioned, such items as the following: Bath and hot-water supply, a billiard room, a chancel window, a concrete floor. reparation of dry rot, a library, improving a mineral spring, sea walle, slates, tiles, and zinc supplanting thatched roofs, sheep pens, and others. On the other hand, there decisions which show that the expenditure of capital has been disallowed under the Settled Land Acts on the removal of dry rot, a chapel, new stables, greenhouses, hot water for heating purposes, modern chimney stack, shafting for cotton mille, a laundry, electric lighting, and, semble, an engine-house for the dynamo. Wide as are the powers already possessed, modern needs are such that to enable premises to let trustees should be enabled to provide tenants with Buch modern luxuries as steam heating and electric lighting, garages, and so on.
THE case of Davies v. Elbw Vale Urban District Council decided by Mr. Justice Channell, is one of very great interest, for it raises a question constantly before all those concerned in elementary school matters. Female school teachers frequently marry, and the point is often put as to whether marriage per se is sufficient to justify dismissal, and it is not infrequent for the prospective bride to inquire whether the managers of voluntary schools would approve of her marriage. The position is then difficult for all parties. If consent is given, unpleasantness always arises over the conflicts of duty which supervene, and stil more delicate questions arise should the mistress become pregnant. The case under comment arose as between a married teacher and a Welsh local education authority. She was appointed in 1900 and married in 1901. In Sept. 1910 her condition was such that the education committee requested her to remain away, although her health was good and she could physically perform her duties for another three months. The child was born in January, work resumed in February, and from that date her salary had been duly paid. The local education authority refused, however, to pay between September and February. Mr. Justice Channell held that the salary must be paid, and he based his decision on the terms of the contract, which seemed to put on the teacher the loss after four weeks' illness. Was this absence caused by illness? The learned judge could not say that this was an absence reasonably arising in consequence of approaching illness, and he thought that this matter might be made a subject for express rules. It may incidentally be noted that it appeared at the trial that this knot is to be cut by employing no married women in future. This case has to be read in conjunction with the general principles to the effect that, where there is illness, the loss for temporary incapacity rests on the employer of a servant-a doctrine based on the notion that illness is not a breach of contract, but an act of God. In this case there were certain rules governing a somewhat special environment, and it may be supposed that the liability disclosed now will lead to further regulations.
SAUNDERS' PRECEDENTS OF INDICTMENTS.-With a Treatise thereon, and a copious Body of Forms. By HENRY ST. JOHN RAIKES, Barrister-at-Law. Third Edition, price 7s. 6d., post free.-HORACE Cox, "Law Times" Office, Windsor House, Bream's Buildings, E.C. -[ADVT.]
THE creation of uses or trusts by reference is very tempting, as thereby the repetition of lengthy clauses is avoided. On the other hand, what is gained in brevity is apt to be lost in lucidity, and, unless such referential trusts are very carefully framed, they are liable to prove more expensive in the end than setting out the limitations at length. It is often a difficult question whether the whole of the trusts, powers, and provisions of the original instrument, or only some of them, are intended to apply to the new trust, and in rarticular whether the word "trusts" includes "powers," and whether the new trust is intended to include limitations which have been created under powers contained in the original instrument. There is no great amount of authority on the point. In Morgan v. Rutson (16 Sim. 234), by an indenture dated in 1814, estates were limited to such uses and upon such trusts, &c., as A. should appoint, and in default of appointment for him for life, with remainder to his son for life, with remainder to the son's first and other sons in tail male; and those limitations were followed by powers of leasing, and of sale and exchange, the latter of which was to be exercised during the life of A. and his son, and with their consent. In 1830 A., being desirous of relinquishing his life interest, appointed the estates to his son for life, with remainder to the uses, upon the trusts, and subject to the powers expressed in the deed of 1814 ulterior to the limitations therein or the lives of A. and his son. And it was held that, though the power of sale was to operate in derogation of the life estates, it was not destroyed by the deed of 1830. In Minton V. Kirwood (18 L. T. Rep. 781; L. Rep. 3 Ch. App. 614) the facts were shortly as follows: By a marriage settlement dated in 1848, after reciting the intended marriage, and that it had been agreed that the lady's property should be settled and assured to the uses thereinafter declared, certain freeholds were conveyed to the use of the wife for life, with remainder to the use of the husband for life, with remainder to such uses and upon such trusts as the wite should appoint, and in default of appointment to uses in favour of the issue of the marriage. The wife covenanted to surrender her copy holds "to such and the same uses as are herein before expressed concerning the freeholds" It was held by the Court of Appeal that such covenant made the copyholds subject in equity to the same power of appointment as the freeholds, though powers were not expressly referred to in the covenant. Lord Justice Sir W. Page Wood in the course of his judgment said: "It is a play upon words to say that the power is not included. The first limitation after the life estate of the husband and wife is to such uses and trusts as the wife shall appoint. Then, the intention being that the copyholds shall go exactly in the same way as the freeholds, it is a correct and proper way of effectuating that intention to say that the copyholds shall be limited to such uses as are expressed of the freeholds, some of the uses expressed being such uses as S B. (the wife) should appoint. Probably in cases where there are numerous complicated powers taking effect by way of proviso in derogation of the uses limited, as, for instance, in the case of powers of sale and exchange, it is right ex majori cautelâ to refer expressly to the power, as is done in the common form." In Smyth-Pigott v. Smyth-Pigott (W. N. 1884, p. 149) the facts were shortly as follows: On the marriage of Mr. and Mrs. Smyth- Pigott in 1817, funds were settled in trust on their decease for such of their children as they might appoint. The settlement contained no hotchpot clause. There were nine children. Appointments were made to four of them, and in those appointments a hotohpot clause was inserted. One of the children, Mrs. W., to whom the sum of £6000 had been appointed, settled her share in trust for herself and her husband, with remainder on her death without issue to trustees upon the trusts of the settlement of 1817, or such of them "as should then be subsisting and capable of taking effect." The trusts of the settlement were wound-up and the trust funds divided among all the children, and subsequently in 1882 Mr. and Mrs. W. died without issue. The judge of first instance held that the
trusts of the settlement of 1817 "subsisting and capable of taking effect" at the death of Mrs. W. were the trusts of the settlement as varied by the appointments to the four children, and therefore that Mrs. W.'s trust fund must be divided subject to the hotchpot clause in the said appointments. On appeal that decision was reversed. Lord Justice Baggallay said: "The hotcbpot clause in each of the appointments only prevented the appointees from taking any share of the residue of the trust fund remaining unappointed. The particular fund now in question was appointed and was then resettled by Mrs. W., and was thus taken out of the trusts of the original settlement. only trusts of the original settlement then subsisting were for the equal division of the trust fund among the children, without regard to any of the previous appointments. The fund must, however, be divided without regard to any clause of hotchpot." It must now be taken as settled that a trust created by reference to other trusts ought not, generally speaking, to be so read as to create a duplication of charges: (see Hindle v. Taylor, 5 De G. M. & G. 577, which was approved of in Trew and the Perpetual Trustee Company, 72 L. T. Rep. 241; (1895) A. C. 264). There a testator gave to his widow the interest of £20,000 during widowhood, and on remarriage the interest of £10,000 for her lite, the interest on the balance of the £20,000 to be in that case for the benefit of her children; " and as to all his residuary estate he gave it upon the same trusts as were declared in regard to the £20,000. The widow married again. It was held that the residuary clause did not operate to give to her either the income for life of a moiety of the residuary estate or of an additional £10,000 (see, further, as to Referential Trusts, Mr. Vaizey's valuable work on Settlements, vol. 2, p. 1301 et seq.).