« EelmineJätka »
At Clerkenwell County Court on the 21st inst., His Honour Judge Edge said he regretted to say that he had received an intimation from the Lord Chancellor that they would not have the assistance of Judge Bray after next week, as he had been appointed to the Bloomsbury County Court, and Mr. Cluer, the newly-appointed judge, would give his assistance to the Clerkenwell County Court, in lieu of Judge Bray. "I am sure," added His Honour, "that the Profession will hear with very great regret that we are to lose Judge Bray." His Honour Judge Cluer took his seat for the first time as a County Court judge at Whitechapel on the 20th inst. The late Judge Bacon sat at both Bloomsbury and Whitechapel, but in future Judge Bray will sit at Bloomsbury. Judge Cuer was welcomed by Mr. George Vandamm, solicitor, who said the general feeling was that there could not be a more worthy successor to Judge Bacon. Judge Cluer made an appropriate acknowledgment.
In Ionour of his jubilee as town clerk and justices' clerk and the ninetieth birthday of Mr. William Grange, the oldest town clerk in (reat Britain, a notable gathering of civic and public representatives met at Grimsby Townhall on the 19th inst., when the mayor (Councillor J. Whiteley Wilkin, J.P.) presented to him two albums from the corporation and borough justices respectively. They recorded his eminent services in both offices during the past fifty years, during which period Mr. Grange has materially aided in the development of Grimsby from a mere fishing village to the fishing metropolis of the world and a big seaport. Some years ago he was the recipient of a presentation portrait, and the freedom of the borough was conferred on him. At the same gathering the mayor unveiled a copper medallion affixed in a niche of the townhall main entrance commemorating the inauguration of the King Edward Memorial Convalescent Fund.
A firm of solicitors writes :-In your issue of the 15th inst. we notice in the Occasional Notes a paragraph in reference to a firm of solicitors having been victimised by a man giving the name of Gould, and it is stated later on that he also used the name of Reid. We have been victimised by this man under the name of George Reid. He gave us Mr. Ernest Harris' address, to whom we wrote, and he has replied to say that he knows nothing whatever of the man. It seems to us that this man may go on doing this sort of thing for a very considerable time without being caught, unless he happens to go to some solicitor who has noticed the paragraph in the LAW TIMES of the 15th inst. We propose, therefore, in the interest of brother professionals, to take what steps we can to stop this man. you like to insert this letter in your next issue, we shall be pleased for you to do so, as it might bring this case to the notice of other solicitors and thus prevent similar frauds.
Last Saturday a cricket match in aid of the funds of the Legal Musical Society Charity Fund was played at the Oval, Kennington, between Barristers and Barristers' Clerks, which ended in a victory for the barristers, they winning by 142 runs. The attendance was good. The Lord Chief Justice was unable to be present, but Lord and Lady Gorell, Mr. J. H. Murphy, and Mr. and Mrs. Harold Morris were amongst the select few who occupied seats in the pavilion. The following played for the barristere, viz., Mr. C. P. Goodden, Mr. W. L. Sampson, Mr. J. M. Buchanan, Hon. R. Coke, Mr. J. Flowers, Hon. R. Gorell Barnes, Mr. H. Church, Mr. A. M. Latham, Mr. Cleveland Stevens, Mr. W. W. Melville, Mr. R. C. Cutler, and Mr. D. R. Osborne. The Barristers' Clerks were represented by Mr. T. T. Brewer, Mr. W. A. Towzey, Mr. A. T. Hamilton, Mr. F. Cox, Mr. T. J. Gracey, Mr. H. C. Worth, Mr. W. G. Kerridge, Mr. W. H. White, Mr. C. Benan, Mr. F. A. Damar, Mr. F. J. Relphs, and Mr. W. Field.
A Parliamentary return was issued on Tuesday showing the number of additional posts, established and temporary, created in consequence of legislation passed since 1906, and still in existence, in each of the public departments. The return covers the period from the 1st Jan. 1906 to the 10th April 1911. There were 1161" established " posts added, of which number 447 carried salaries with a maximun not exceeding £150 per annum; 606 with salaries exceeding £150 and not exceeding £500; and 108 with salaries exceeding £500 per annum. Of the 1161 "established" posts, 321 appointments were made without competition, whilst the remainder were filled after open or limited competition. Of the 3130 temporary posts created, 2860 appointments were made without competition; 2377 received salaries not exceeding £150; 736 salaries exceeding £150, and not exceeding £500; and seventeen galaries exceeding £500. The departments which are conspicuous for the number of new posts created in them are: Inland Revenue, 460 established posts, 1543 temporary, thirty eight with salaries exceeding £500; Board of Trade, ninety-one established posts, 1118 temporary, eleven carrying salaries exceeding £500; Customs and Excise, 129 established, two temporary, eleven salaries exceeding £500; Post Office, 115 established, eight temporary, one salary over £500; Public Trustee, temporary, 160; Board of Agriculture, fifty established, twenty-two temporary, fifteen salaries exceeding £500. In a note appended to the return it is stated that the total returned under Inland Revenue does not include twenty-one posts with maxima exceeding £150, and not exceeding £500, and thirty-nine posts with maxima exceeding £500 created for death duty purposes and filled without open competition before the passing of the Finance (1909-10) Act 1910. It is also stated that the staff of the Irish Land Commission has been increased since Jan. 1906 by 205 established and eighteen temporary posts. It is pointed out that the number of appointments made without competition includes certain cases in which the person appointed was promoted from an existing situation in the public service obtained after competition.
Speaking at the annual meeting of the British Medical Association on Wednesday, Dr. Bramwell said that all who were engaged in hospital practice, and especially those who saw many nervous cases, would, he was aure, agree that since the passage of the Workmen's Compensation Act cases in which nervous symptoms were developed after injuries, or supposed injuries, had become more common, and that the duration of illnesses had become much prolonged. His experience showed that in such cases the patient did not get well, or get well with difficulty, so long as the question of compensation was pending. Personally, he had little doubt that if the National Insurance Bill was passed the same result would follow in some, perhaps many, of the cases of ordinary illness, and that the amount of attendance required in the case of patients compulsorily insured would be found very much greater than had been calculated. Some people seemed to think it was easy to detect malingering. Those of them who had had experience knew there was nothing more difficult. With regard to errors of diagnosis, the results were apt to be particularly injurious. A doctor who was not sure of his diagnosis could not impress the patient with confidence, and rarely dealt successfully with cases of functional nervous derangement. The composition of the medicine in some of these cases was of little or no consequence. Distilled water given hypodermically was often very efficacious. The main object of the medicine was to keep up the mental effect produced by the favourable and confident opinion of the physician.
By the death of the Right Hon. Sir Francis Edmund Workman Macnaghten, Bart., without male issue surviving, his younger brother, the Right Hon. Lord Macnaghten, succeeds to the baronetcy, which is an honour of legal and judicial origin, having been conferred on his grandfather, who was a judge of the Supreme Court of Judicature in Madras-a position to which he was appointed in 1809, and from which he was transferred to that of Bengal in 1815. Lord Macnaghten, who is in his eighty-second year, was created a Lord of Appeal and a peer for life in 1887. Years previously he had been offered, but had declined, a seat on the Bench, which had been pressed on his acceptance on the grounds of professional merit, when he was sitting on the Opposition side in the House of Commons, and it is no secret that he had from the Conservative Government the offer of the great position of Secretary of State for the Home Department with a seat in the Cabinet. Lord Macnaghten
is not the only judicial personage who has succeeded to baronetcy late in life. In 1858 Sir Alexander Cockburn, then Chief Justice of the Court of Common Pleas and in the following year Lord Chief Justice of England, succeeded on the death of his uncle, the Dean of York, as tenth baronet to a baronetcy of Nova Scotia created in 1627, which became extinct on his death. So, too, the first Lord Moncreiff in 1883, when Lord Justice-Clerk, after he had been created a baronet and a peer, succeeeded his brother as the eleventh holder of a baronetcy created in 1626. In Ireland, the Right Hon. Sir Frederick Shaw, who was Recorder of Dublin from 1828 till his death in 1876, and had a very great Parliamentary career, succeeded to a baronetcy, conferred on his grandfather, on the death of his elder brother, unmarried, in 1869, when he had entered on his seventy-second year.
Mr. W. Joynson-Hicks, M.P., presided at the Hotel Cecil on Wednesday at the first annual meeting of the Automobile Association and Motor Union, the two bodies having amalgamated in January last. In moving the adoption of the report the chairman said the progress that had been made since the amalgamation had been somewhat remarkable. At the end of June there were no fewer than 31,851 members of the joint body. That made it considerably the largest motoring organisation in the world, and to-day the number was well over 32,000. The legal department had been very busy, and he would like to say a word in regard to the attitude of the police and to what were known as police traps, a system which he hoped would very soon be ended by the common consent of the community. He did not believe in fast driving himself, and was certain that 99 per cent. of the members of the association were moderate drivers. Very few ever drove to the public danger, although perhaps there were some who, on perfectly empty country roads, exceeded the speed limit. The law as administered in some counties was very harsh on motorists. They were trapped. No indication was given at the time that they had exceeded the speed limit, and, as often happened, not for a week or ten days did they have any intimation that they had committed an offence. By that time it was impossible for them to say whether the speed limit was exceeded or not. The evidence was all in the hands of the police, and they were unable to check or test the police watches. The patrol system upon which So much of the popularity of the association depended had been kept up to a high state of efficiency. It was carried on in entire conformity with the laws of the land and was in no way illegal. In regard to slow moving traffic it was essential that the public should realise that the system of traffic had changed during the last two or three years. Within the next two or three years it would have changed entirely. Time was economy and it was essential in the interests of all road users that where possible the new scheme which the London County Council and the Home Secretary were securing the passage of to keep the slow and heavy traffic to the side of the road should be carried out thoroughly and efficiently. If it was he thought they would have heard the last of the complaints about the congestion of traffic in the streets of London. He was sure members would do all they could to check the unnecessary use of horns at night and that no man would drive through the streets of London with an open exhaust. With regard to the proposed National Council a joint conference has been arranged to discuss the matter.
In the City of London Court, on the 20th inst., an interesting prize puzzle case was heard before Sir John Paget, K.C., deputy judge. Mr. James K. Pickup, solicitor, 233, Cecil-chambers, Strand, sued the Ceylon Tea Company, 67, Imperial-buildings, Ludgatecircus, for £5. Plaintiff's case was that the defendants sold him 2lb. of Ceylon tea, and they offered him 100 marks (£5) on his sending them a correct solution to a puzzle advertised by them. Plaintiff sent in a correct solution and now demanded his £5. Mr. Harold Smith, M.P., appeared for the plaintiff, and Mr. J. D. Cassels for the defendants. Mr. Smith said that the action had been brought because of the principle involved rather than the money involved. A German friend sent to the plaintiff an advertisement of a prize puzzle advertised by the defendant company in Germany, solutions to which were invited by purchasers of 2lb. of Ceylon tea who sent five marks. Plaintiff was struck by the great simplicity
of the puzzle, and he sent the five marks and had the tea. In the puzzle a field was divided into nine smaller fields. In the middle field stood the figure 4. The puzzle consisted of placing into the other eight fields such figures that the addition of the different fields in as many straight lines as possible came to twelve. It was forbidden to use a figure which had been used in one field again in another field. Neither must any field remain blank. Plaintiff's solution was correct. When plaintiff said he had sent in a correct solution, defendants said that there were 500,000 different ways of manipulating the figures and thereby expressing the correct solution. The defendants' explanations were absurd, meaningless, and clumsy, and violated their own rules. The deputy judge said it looked like "the old game." Mr. Cassels replied that it was nothing of the sort. It was a science. The correct solution consisted of ten straight lines, and the plaintiff had sent eight straight lines. Therefore his was not the correct solution, the prize for which had gone to someone in St. Petersburg, who had had his money. It was simply an arithmetica! problem. Plaintiff in evidence said he looked upon the advertisement as a quasi-swindle and meant to deceive the public. It should be exposed. His eight-year-old boy did it in five minutes. Defendants were seeking refuge behind fractions, such as nineninths and three-thirds-which were rubbish. Mr. Cassels said that the puzzle was quite fair. Defendants had combined figures. The deputy judge said he looked upon the whole thing as a fraud altogether. A witness was called for the defendants to say that nine and nine-ninths was an arithmetical form of expressing the figure 8 and was used with others in the solution. Mr. C. R. Sadler said he traded as the Ceylon Tea Company. He was an author under the name of Horace Portland and was an advertising expert. The puzzle was perfectly bonâ fide. He received in all 1200 answers to the advertisement and £300, and he sent £12 108., one prize, and 2lb. of tea to each. The deputy judge did not think it necessary for him to find fraud, but the whole thing was very delusive and a catchpenny. He found for the plaintiff for £5 and costs on the higher scale. Defendants were raking in sovereigns in a small back office, and it was not the sort of business that ought to be encouraged in the City of London. The plaintiff had rendered a public service in bringing the action.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
HOUSE OF LORDS.
Employer and Workman-Death by Accident-Compensation-Accident arising out of and in the Course of Employment-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58).-A brakesman was riding in the first of a train of three trucks which were being pushed by an engine. The train overtook another train on the same line of rails, which had the engine in front and a brake-van behind, and the two trains proceeded buffer to buffer, but not coupled together. The brakesman attempted to climb from the truck into the brakevan in front, which was admitted to be a dangerous thing to do, presumably in order to get down from the van on to the line by some steps, in order to attend to some points which the trains were approaching. While so climbing from the truck to the van he fell on to the line and was killed by the train. Held, that there was evidence that the accident arose "out of" as well as "in the course of" the employment of the deceased man, and that his widow was entitled to compensation under the Workmen's Compensation Act 1906. Judgment of the Court of Appeal (104 L. T. Rep. 373; (1911) 1 K. B. 1036) affirmed (Lord Atkinson dissenting). [Evans and Co. v. Astley. H. of L. July 21.-Counsel: Rigby Swift and G. C. Rees; E. Stewart-Brown and A. Elias. Solicitors: W. Pingree Ellen, for Pearce and Darlington, Liverpool; H. Verdon Baines, for A. E. B. Griffin, St. Helens.] Trade-Rival Traders-Imitation cf get-up of Rival's Goods-Passing off. The appellants had for many years sold laundry blue, tints, and dyes, put up in little bags, not marked with their names, with a stick protruding from the bag to enable the contents of the bag to be immersed in, and mixed with, water without staining the fingers of the user. They alleged that the presence of the stick had come to be the means by which purchasers recognised their goods, and that they were asked for asthe blue with the stick in it." No other makers used such a stick till the respondents began to do so in 1909, when they altered the get-up of their goods so as
to make them like the appellants' goods, except that they affixed a label to them bearing their own name. Held, that the appellants were entitled to an injunction to restrain the respondents from getting up their goods in a way calculated to deceive purchasers, and that the question was not affected by the fact that the appellants had obtained a patent for this method of wrapping up their blue which had been revoked. Judgment of the Court of Appeal (103 L. T. Rep. 579; (1911) 1 Ch. 5) reversed.
[Edge and Sons v. Niccolls and Sons. H. of L. July 21.Counsel: Buckmaster, K.C., Hon. F. Russell, K.C., and J. G. Joseph; A. Grant, K. C. and Frost. Solicitors: Ernest Salaman and Co.; Haslam and Sanders, for Hindle, Son, and Cooper, Darwen.]
COURT OF APPEAL. Parliament-Registration of Voters-Occupier or Lodger - Landlord resident in House-Rooms let to Tenant-Objection - Prima facie Proof-Landlord rated for whole House-Value of House over £8 a Year-Representation of the People Act 1867 (30 & 31 Vict. c. 102), 88. 3, 7-Poor Rate Assessment and Collection Act 1869 (32 & 33 Vict. c. 41), 88. 3, 4, 19-Parliamentary and Municipal Registration Act 1878 (41 & 42 Vict. c. 26), 8. 14 Representation of the People Act 1884 (48 & 49 Vict. c. 3), s. 9.-Appeal of P. from the judgment of the King's Bench Division upon a case stated by a revising barrister. At the court held by the revising barrister a number of persons were objected to who were either placed in division 1 of the occupiers list or claimed to be placed in that list as occupiers of dwelling-houses. It was proved in each case that the landlord resided in the house in which rooms were let to the person objected to; that it was an ordinary dwelling house; and that the landlord was rated for the whole house. In each case the revising barrister held that proof of those three facts was primâ facie proof of the objection. Thereupon each person objected to gave evidence, and in each case the barrister found as a fact that the rooms were let unfurnished; that the person objected to had the sole and exclusive use and occupation thereof; that no services were rendered to him in the rooms by the landlord; that the landlord claimed no right to enter into or exercise any dominion or control over the rooms, nor did in fact ever exercise such rights; that the person objected to had free access to the rooms from the street at all times by a key provided by the landlord, who reserved to himself and in fact exercised no right to fasten the street door; and that at the time of the letting of the rooms no terms were specifically mentioned by either party except as to the number and situation of the rooms taken, the amount of rent payable, and the times at which it was payable. The objector objected that there was no evidence to rebut the prima facie proof that the person objected to was a lodger, and also that none of the persons objected to had been rated or paid rates in respect of the rooms occupied. In each case the house was above the rateable value fixed by sects. 3 and 4 of the Poor Rate Assessment and Collection Act 1869. The revising barrister held that each person was entitled to be in division 1 of the occupiers list. The Divisional Court (Lord Alverstone, C.J., Darling and Pickford, JJ.) held that the person objected to was not entitled to be on division 1 of the occupiers list because there was no evidence to rebut the primo facie proof that he was not an inhabitant occupier, but a lodger: (103 L. T. Rep. 668). G. J. P. appealed. Held (dismissing the appeal), that, inasmuch as the person objected to had not been rated or paid rates in respect of the rooms occupied by him, and the house was not within sects. 3 or 4 of the Poor Rate Assessment and Collection Act 1869, he was not entitled to be on division 1 of the occupiers list. [Kent v. Fittall. Ct. of App.: Vaughan Williams, Fletcher Moulton, and Buckley, L JJ. July 20 and 21-Counsel for the appellant, Danckwerts, K.C. and Raymond Asquith; tor the respondent, Foote, K.C. and F. F. Daldy. Solicitors: for the appellant, Russell-Cooke and Co.; for the respondent, Ayrton, Biscoe, and Barclay.]
evenue-Income Tax-Royalties for user of Patent-Deduction— Average of three Years-Royallies ceasing to be payable-Finance Act 1907 (7 Edw. 7, c. 13), 8, 25 (1).-A company was formed to acquire the sole right to manufacture and dispose of a certain machine. The question arose whether the royalties which were admitted to have been paid by the company for the user of certain foreign patents before the coming into operation of the Finance Act 1907, and which ceased to be payable as from the 1st Jan. 1907, were, having regard to the provisions of that Act, to be deducted in arriving at the profits of each of the three years entering into the average for the purpose of estimate for assessment for the year 1907-8. Up to and prior to the year 1907 the company were assessed on the average of three years ending on the 30th Sept. preceding the year of assessment of each year, and were allowed, in arriving at each year's assessment, by way of deduction the amount of royalties which they had paid in respect of patents during the aforesaid three years of average. The company contended that the assessment should be made on the sum of £12,529 only-that is, on the average profits during the three preceding years as ascertained on the basis of the royalties being allowed as a deduction-and that the operation of sect. 25 (1) of the Finance Act 1907 was prospective only, and not retrospective, and that, no royalties being payable during the year of assessment, it was not possible for the company to deduct or retain thereout the amounts of the income tax chargeable during the period through which the respective royalties were accruing due, and that the profits for the years ending the 30th Sept.
1904 and the 30th Sept. 1905 having already been ascertained for the purposes of income tax on one basis, could not be ascertained on a different basis for the year 1907-8. The surveyor of taxes, on the other hand, contended that the assessment should be on the sum of £18,031-that is, on the average profits during the three preceding years as ascertained on the basis that the royalties were not allowed as a deduction-and that the average of the three preceding years is the method prescribed by the provisions of the Income Tax Acts merely for the purpose of estimating the profits in any one year, and that under the Finance Act 1907, in arriving at that estimate, no deduction must be made on account of such royalties. The Commissioners of Income Tax were of opinion that the contention urged on behalf of the Crown was correct, and confirmed the assessment. The company appealed. It was decided by Hamilton, J. (104 L. T. Rep. 503) that for the purpose of the estimate for assessment for the year 1907-8-that is to say, the average profits for the three preceding years-the royalties paid in those years ought not to be deducted, having regard to sect. 25 (1) of the Finance Act 1907. The company appealed to the Court of Appeal. Held, that the contention of the company was correct; and that the assessment should be on the average profits during the three preceding years as ascertained on the basis of the royalties being allowed as a deduction. Appeal allowed.
[Lanston Monotype Corporation Limited v. Anderson. Ct. of App. : Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. July 26.-Counsel: for the appellants, Danckwerts, K.C. and Austen-Cartmell; for the Crown, Sir John Simon (S.-G.) and William Finlay. Solicitors: for the appellants, Bristows, Cooke, and Carpmael; for the Crown, Solicitor of Inland Revenue ]
Revenue-Land Tax-Railway Tunnel-Liability to Land TaxRedemption-Land Tax Act 1797 (38 Geo. 3, c. 5), 8. 4—Land Tax Redemption Act 1802 (42 Geo. 3, c. 116), ss. 8, 38.-A railway company was incorporated by special Acts and empowered to construct certain railways and other works. These were wholly under the surface of certain public streets or highways, and consisted of two single lines of railway, each carried in a separate tunnel, the tunnels being connected at the eastern end. The railway company contended, first, that by means of the redemption of land tax the land tax had been redeemed to the middle line of the public street; and, secondly, that they were not liable to pay land tax in respect of railways and works under any land where the land tax had been redeemed. The Commissioners for Land Tax contended that the railways and works were a new hereditament, and that no redemption of land tax took place in respect thereof. The authorities of Hodgson v. Pearson (31 L. T. Rep. 679) and Newton, Chambers, and Co. Limited v. Hall (96 L. T. Rep. 743; (1907) 2 K. B. 446) were cited. It was decided by Swinfen Eady, J. (104 L. T. Rep. 245), first, that the redemption of land tax on premises abutting on the street did not extend to the middle line; and, secondly, that no land tax was payable in respect of new bereditaments below the surface when the tax has been redeemed. The plaintiffs appealed as to the first point. Held (dissentiente, Farwell, L.J.), that the redemption of land tax on premises abutting on the street extended to the middle line. Appeal allowed.
[Central Lo don Railway Company v. Commissioners for Land Tax for City of London. Ct. of App.: Cozens-Hardy, M. R., Farwell and Kennedy, L.JJ. June 26, 27, 28, and July 24.-Counsel for the appellants, Macmorran, K.C. and E. M. Konstam; for the respondente, Danckwerts, K.C. and Bremner. Solicitors: for the appellante, Ashurst, Morris, Crisp, and Co.; for the respondents, Harratt and Pollock.]
Revenue-Stamp Duty-Deben'ure-Marketable Security-Instrument for the Disposition of Interest in a ship-stamp Act 1891 (54 & 55 Vict. c. 39)--A limited company issued a debenture dated the 31st Dec. 1909 for £1000 and interest which was a marketable security. This debenture was one of an issue made for an amount not exceeding £20,000. It stated that the company would pay the registered holder for the time being £1000 and interest, and the company charged with the payment of the £1000 and interest three steamships, and then followed a proviso entitling the company to use and employ the steamships in the usual course of their business until default in payment of the principal money or interest secured by the debenture or winding up proceedings were taken, whereupon the debenture was to be immediately enforceable. It was further provided that nothing in the debenture contained was to be held to authorise the creation of any mortgage or charge of or upon the steamships or any part or share thereof having priority over the charge purported to be created by the debenture. The debenture also contained a declaration that it was subject to and with the benefit of the conditions indorsed thereon. It was provided by those conditions (inter alia) that the series of debentures so issued should rank pari passu without any preference or priority of one debenture over another as a first charge on the steamships, and that "the holders for the time being of this debenture and the other debentures of this issue (in addition to the charge hereby respect vely created) shall be entitled pari passu to the benefit of a deed of cover ants dated the 22nd Dec. 1909 and three several mortgages of even date therewith." The three mortgages of the 22nd Dec. 1909 were mortgages of the three steamships, and were respectively in the statutory form prescribed by the Merchant Shipping Act 1894. The deed of covenants of the 22nd Dec. 1909 recited these mortgages (which were granted by the company to trustees for the debenture holders), a contained covenante by the
company with those trustees that the company would pay the principal money and interest secured by the debentures, and that Buch principal money and interest should be a charge on the steamships, and other covenants and provisions for the maintenance of the security and for its realisation in case of default. Held, that the debenture was not an instrument for the disposition of an interest in the ships within the meaning of No. of the General Exemptions from all Stamp Duties in the 1st schedule to the Stamp Act 1891, and that it was liable to stamp duty as a "marketable security "within the 1st schedule of that Act. Decision of Hamilton, J. (104 L. T. Rep. 602; (1911) 1 K. B. 1078) affirmed.
[Deddington Steamship Company Limited v. Commissioners of Inland Revenue. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, LJJ. July 19-Counsel: Clauson, K. C., A. A. Roche, and Cuthbertson; the Attorney-General (Sir Rufus Isaacs, K.C.) and William Finlay. Solicitors: Botterell and Roche; Solicitor of Inland Revenue.]
Revenue-Stamp Duty-Settlement-Resettlement-Provision for keeping up Policies-Covenants in Settlement only-Stamp Act 1891 (54 & 55 Vict. c. 39), 8. 104-By an indenture made in 1892 certain freehold estates were settled in a particular way. By an indenture of even date certain policies of life insurance were assigned to trustees, and it was provided that the moneys payable thereunder should be applied in the same manner as capital moneys under the settlement, and the indenture contained covenants for keeping up the policies. Both indentures were duly stamped. By an indenture made in 1894 the settlors, in exercise of a power contained in the settlement of 1892, resettled the estates, and it was declared and appointed that for the purposes of the policy settlement of 1892 the moneys payable thereunder should be beld upon the trusts of the indenture of 1894, "not under any new disposition or settlement made thereof by these presents, but under or by virtue of the said indenture of the 1st July 1892 and the trusts thereby declared, and on the footing of these presents being for the purposes of that indenture and the trusts thereby declared tion" of the trusts thereby declared with an exception mentioned. There were no provisions in the indenture of 1894 for keeping up the policies, but the covenants for payment of the premiums contained in the policy settlement of 1892 still applied. Held, that provision was made in the indenture of 1894 for keeping up the policies within sect. 104, sub-sect. 2 (a), of the Stamp Act 1891, and ad valorem duty was payable on the moneys payable under the policies. Decision of Hamilton, J. (104 L. T. Rep. 507; (1911) 2 K. B 343) reversed on this point.
[Duke of Northumberland v. Commissioners of Inland Revenue. Ct. of App. Cozens- Hardy, M.R., Farwell and Kennedy, L.JJ. July 20.-Counsel: The Attorney-General (Sir Rufus 189808, K.C.), Austen Cartmell, and W. Finlay; Danckwerts, K.C. and Tomlin. Solicitors: Solicitor of Inland Revenue; Moy, How, and Chilver.]
HIGH COURT OF JUSTICE-CHANCERY DIVISION. Practice--Contempt of Court-Motion to commit-Service of Copies of Affidavits-Order LII, r. 4-An interim injunction having been obtained against the defendant in an action restraining him from retaining possession of a certain machine, notice of motion was given to him that a writ of attachment should issue against him for breach of the injunction, or, in the alternative, that he should be committed for contempt of court in disobeying the order. Upon the motion being made in court, a preliminary objection was made on behalf of the defendant that a copy of the affidavit in support of the motion had not been served upon him with the notice of motion. It was contended on behalf of the plaintiff that this was not necessary, as the motion was in the alternative for committal, and that Order LII., r. 4, which was the only rule on the subject, only applied to motions for attachment. The cases of Litchfield v. Jones (25 Ch. Div. 64), and the memorandum of Mr. Registrar Lavie (given in a note to Re Evans (1893) 1 Ch. 252) and Harvey v. Harvey (26 Ch. Div. 644, 654) were referred to. Held, that, having regard to the observations of Chitty, J. in Harvey v. Harvey, and the general opinion of the Profession, there was no distinction for this purpose between a motion to issue a writ of attachment and a motion to commit. Rule 4 of Order LII. must be construed as applying to all cases where W88 liable to be attached or person of the subject taken into custody, and that therefore the necessity for service of copies of the affidavits intended to be used in support of the motion upon the defendant with the notice of motion existed in the case of a motion to commit as well as of a motion for leave to issue a writ of attachment, and that the preliminary objection to the motion prevailed.
v. Plinston. Ch.
[Taylor Flinston Brothers and Co. Limited Div. Warrington, J. July 21-Counsel: James G. Wood; J. Roll. Solicitors: W. Drake; Meredith and Co., for H. T. Smith, Southport.]
Trustee-Breach of Trust-Administration-Allowing Time for Payment -Loss to Estate-Trustee Act 1893 (56 & 57 Vict. c. 53), s. 21, sub-8. 2. -In the case of two debts-one of £1000 due from C W. on loan from J. G, who died on the 23rd May 1896, and the other of £400 in respect of the purchase of shares in two ships sold and transferred by his executors to C. W. in Jan. 1897-the trustees and executors of the testa or's will, which was duly proved, had in the year 1903, after recovering judgment for £1400, the amount of the debts with interest, obtained from C. W. a second mortgage on his house under which part of the debts had been realised, and the
plaintiffs, entitled to the testator's residuary estate, sued in Nov. 1919 the surviving executor and the representatives of the other executor as for a breach of trust for £488, the balance of the debts unpaid, and interest. At the time of the testator's death C. W. occupied a salaried position in a substantial company, and he was possessed of house and share property; further, he was in good financial credit and believed by the trustees to be affluent for some time after the testator's death, and his financial position was in fact better after 1898 than before. He had for some time from 1898 paid interest on the sums due to the testator's estate. In Feb. 1903 C. W. assigned his property for the benefit of his creditors, and the trustees received 3d. in the pound on the balance due to the testator's estate. Held, applying the law laid down by Sir J. Romilly, M.R. in Clack v. Holland (19 Beav. 263, 271) and Chitty, J. in Re Hurst (63 L. T. Rep. 665, 666), that the trustees were prima facie liable to make good the loss to the estate. Having been put off with promises of good security or payment, they had allowed the matter to drift for five or six years. Their neglect of duty had resulted in loss. Although they were honest, sect. 21 of the Trustee Act 1893 must be construed with regard to the subjectmatter, and the trustees having by their conduct, if not in terms, given time for payment to the debtor, who had ultimately failed, had shown supineness and inactivity, and were not relieved by the section.
[Greenwood v. Firth. Ch. Div.: Eve, J. July 19.-Counsel : Lawrence, K.C. and Ashton Cross; Edward Clayton, K.C. and W. J. Whittaker. Solicitors: Wynne, Baxter, and Keeble, agents for Beldon and Ackroyd, Bradford; F. B. Brook, agent for Gaunt, Hines, and Bottomley, Bradford.]
endor and Purchaser-Agreement for Sale of Lerase-Stipulation for formal Contract-Specific Performance -This action was brought by the plaintiff against the defendant for specific performance of an alleged contract for sale contained in three letters, dated the 18th April, the 25th April, and the 26th April 1911, and also alleged to be contained in a draft contract submitted by the defendant's solicitors to the plaintiff's solicitors. By the letter of the 18th April the defendant made a firm offer to sell to the plaintiff for £25,000. To this the plaintiff replied on the 25th April accepting the offer conditionally, but introducing new terms, so that in effect it was not really an acceptance, but an offer on new terms. The defendant agreed by the letter of the 26th April to the terms contained in the plaintiff's letter of the 25th April. Subsequently the plaintiff endeavoured to introduce fresh terms into the draft contract, whereupon the defendant refused to carry out the contract, and this action ensued. Held, that the offer contained in the letter of the 25th April was not a firm offer, but an offer on certain conditions, and was so accepted that the conditions were precedent; that therefore the letters did not contain a binding contract; and that the case was within Winn v. Bull (7 Ch. Div. 29), and must be dismissed.
[Hatzfeldt v. Alexander. Ch. Div.: Parker, J. July 21 and 26. -Counsel: Buckmaster, K.C. and Douglas Hogg; Grant, K.C. and Harry Greenwood. Solicitors: Guedalla and Jacobson; Cohen and Cohen.]
Vendor and Purchaser-Tille-Sale by Trustees-Consent of Tenant for Life-Implied Power to vary Investments-Settled Land Act 1882 (45 & 46 Vict. c. 38), s. 56.-On the 20th March 1911 a contract was entered into between M. P. and M. E. for the purchase of certain freehold premises known as Grays, Harlington, in the county of M., for the sum of £895, and a deposit of £89 10s. was paid thereon. The contract was an open contract, and a perusal of title disclosed that the property had been purchased by the trustees of a settlement made by one H. K. upon his marriage out of certain moneys coming to them. By this settlement, which was dated the 14th July 1899, power was given to the trustees" to invest any moneys in their hands, which under the trusts thereof ought to be invested, in (inter alia) the purchase of real or leasehold property for the personal use and occupation of the said H. K," but there was no power given to the trustees to sell or vary the investments. Subsequently the trustees conveyed the property "as trustees" to the present vendor M. E., in fee simple, by deed dated the 6th Sept. 1904. The present purchaser objected (1) that H. K. as tenant for life should have been a party to the lastmentioned conveyance by virtue of the provisions of the Settled Land Act 1882 (45 & 46 Vict. c. 38), s. 56; and (2) that the trustees of the settlement of 1899 had no power to sell the property under the trust deed, nor could such a power be implied. Thereupon a confirmatory deed dated the 29th April 1911 was executed, to which the tenant for life in addition to the trustees was a party, assuring the premises to the present vendor. The purchaser was still unsatisfied and took out a vendor and purchaser summons as to title. Held, on the authority of Re Cooper's Trusts (W. N. 1873, 87) that in a proper case a power to vary investments may be implied in a trust deed, and that, even if the consent of the tenant for life is requisite under sect. 56 of the Settled Land Act (ubi sup.) to a sale by trustees, evidence of such consent was sufficiently shown by his affidavit and by the confirmatory deed above mentioned. No order as to costs.
[Re Pope's Contract. Ch. Div. Neville, J. July 20.-Counsel: Humphrey; Manning. Solicitore: Ashcroft; Claremont, Haynes, and Co.]
Will-Construction-Gift to Issue-" Per Stirpes "-Determination of Stirpes.-A testator gave real estate to trustees in trust for "such of the issue of my deceased aunts" C. and M. "who shall be living
at the time of my death, such issue to take per stirpes and not per capita." Held, following Robinson v. Shepherd (9 L T. Rep 527: 4 D. G. J. & S. 129) in preference to Gibson v. Fisher (L Rep. 5 Eq. 51), that as the original gift was to the issue, the issue were the stirpes, and that consequently the property was not to be divided into two halves, but into as many shares as there were separate families of issue.
[Re Dering; Neath v. Beale. Ch. Div.: Warrington, J. July 20 and 21.-Counsel: T. R. Colquhoun Dill; Sheldon; Tomlin. Solicitors: J. N. Mason and Co.; Hare and Co.; Trower, Still, Parkin, and Keeling]
OUR LITERARY COLUMN. NIETZSCHE ON LAW AND PUNISHMENT. (a) By TIGHE HOPKINS.
WITH regard to man, says Nietzsche, Nature set herself that paradox of a task, "the breeding of an animal that can promise." Aided by the morality of customs and social strait-waistcoats, man becomea in the course of time a disciplined and calculable creature. He develops 8 conscience. Then he has need of remembering things; a memory has to be made for the man-animal. building up of memory was, in Nietzsche's estimation, not only an immensely long but also an immensely painful process, inasmuch as only that which hurts, "that which never stops hurting," is indelibly burned into the mind. How are we to explain, he goes on to ask, the severity of the old penal laws, unless we regard them as affording "a gauge of the extent of man's difficulty in conquering forgetfulness, and in keeping a few primal postulates of social intercourse ever present to the minds of those who were the slaves of every momentary emotion and every momentary desire"? Germany, he insists, evolved a nation of thinkers out of her dreadful penal ordinances.
These Germans employed terrible means to make for themselves a memory, to enable them to master their rooted plebeian instincts and the brutal cruelty of those instincts: think of the old German punishments, for instance, stoning (as far back as the legend, the millstone falls on the head of the guilty man), breaking on the wheel (the most original invention and specialty of the German genius in the sphere of punishment), dart-throwing, tearing or trampling by horses ("quartering"), boiling the criminal in oil or wine (still prevalent in the fourteenth and fifteenth centuries), the highly popular flaying ("slicing into strips "), cutting the flesh out of the breast; think also of the evil-doer being besmeared with honey, and then exposed to the flies in a blazing sun. It was by the help of such images and precedents that man eventually kept in his memory five or six "I will nots" with regard to which he had already given his promise, so as to be able to enjoy the advantages of society-and verily with the help of this kind of memory man eventually attained "reason"! How much blood and cruelty is the foundation of all good things But is this really history? Modern penology would certainly have something to say to Nietzsche on all these points. Nothing is more clearly shown in the history of punishment (in every country) than that extravagant penalties have proved the most indifferent aids to 6. memory." These expedients were not confined to the Germans. Punishments of old in England, France, and Italy were scarcely less cruel than in Germany; and in no country was it found that they strengthened the "memory "of culprits. Spectators were brutalised by public torturee, but these tortures had no effect in repressing crime. The conscience of mankind gradually revolted against them, and in al countries lawgivers learned by experience that orime thrives under a savage code. Such a code has everywhere stimulated the passions of society, and has nowhere had any permanent effect for good upon its
Nietzsche, indeed, seems almost immediately to contradiot himself, for he passes to the assertion (in which undoubtedly he is a great deal nearer to the mark) that "punishment developed as a retaliation." It would be very difficult to show that the punisher in punishing had any deliberate notion of improving the memory of the punished (and in any case such a notion must soon have been disproved); but it would be easy, on the contrary, to show that punishment in its What does Dr. Mercier say origin rests largely on ideas of revenge. in his treatise on Criminal Responsibility ? "Whatever else it may afterwards become, punishment is, first and most, retribution. It is retaliation. It expresses the rooted desire of man that he who inflicts suffering should be made to suffer." Nietzsche himself, picturing the sufferer and the person who injures him as standing in the relationship of creditor and owner, expressly observes that the creditor's (a) The Genealogy of Morals: A Polemic. By Friedrich Nietzsche. Translated by Horace B. Samuel. T. N. Foulis.-The Gospel of Superman: The Philosophy of Friedrich Nietzsche. From the French of Heuri Lichtenberger, with an Introduction. By Daniel by I. M. Kennedy. T. N. Foulis.-The Life of Friedrich Nietzsche. Halevy. Translated by J. M. Hone. With Introduction by T. M. Kettle, M.P T. Fisher Unwin.
compensation "consists in a claim on cruelty and a right to draw thereon."
From this he proceeds to show, with perfect truth, what an intensity of pleasure ancient man derived from cruelty. The time is not so long past, he says,
When it was impossible to conceive of royal weddings and national festivals on a grand scale, without executions, tortures, or perhaps an auto-da-fé, or similarly to conceive of an aristocratic household without a creature to serve as a butt for the cruel and malicious baiting of the inmates. Without cruelty, no feast, so teaches the oldest and longest history of man-and in punishment too there is so much of the festive.
But this is far from the theory of punishment as a mode of strengthening the memory!
We find, in modern times, that as communities grow older and wiser and more powerful, they tend to be less vindictive in their pursuit of the individual offender. Punishments may continue to be unwise, and sometimes entirely fruitless, but they lose their character of stupid savagery. This is partly, no doubt, because society realises that its corporate existence is stronger than of old, and that therefore the individual delinquent is less dangerous; but it is partly also because society begins to be aware (1) that it is in itself to some extent responsible for its criminals, and (2) that the criminal, as 8 creature partly deficient (an "unfinished man," as Dr. Albert Wilson describes him; or, as Lombroso puts it, one whose development has been arrested), is not so culpable as he was once held to be. Nietzsche says:
It is possible to conceive of a society blessed with so great a con sciousness of its own power as to indulge in the most aristocratic luxury of letting its wrong-doers go scot-free. "What do my parasites matter to me? might society say. "Let them live and flourish! I am etrong enough for it."
But to do this, of course, Justice would have to destroy itself. It would be the reign of Grace for everybody. It would be a millennium of a most unlooked-for sort. Meanwhile, we have at all events reached the stage at which the worst and most dangerous of offenders can count upon protection by law against excesses of popular fury. The old form of Hue and Cry has long disappeared.
Everywhere where justice is practised and justice is maintained, it is to be observed that the stronger power, when confronted with the weaker powers which are inferior to it (whether they be groups or individuals), searches for weapons to put an end to the senseless fury of resentment, while it carries on its object, partly by taking the victim of resentment out of the olutches of revenge, partly by substituting for revenge a campaign of its own against the enemies of peace and order, partly by finding, suggesting, and Occasionally enforcing settlements, partly by standardising certain equivalents for injuries, to which equivalents the element of resentment is henceforth finally referred. The most drastic measure, however, taken and effectuated by the supreme power, to combat the preponderance of the feelings of spite and vindictiveness, is the foundation of law, the imperative declaration of what in its eyes is to be regarded as just and lawful, and what unjust and unlawful: and while, after the foundation of law, the supreme power treats the aggressive and arbitrary acts of individuals, or of whole groups, as a violation of law, and a revolt against itself, it distracts the feelings of its subjects from the immediate injury inflicted by such a violation, and thus eventually attains the very opposite result to that always desired by revenge, which sees and recognises nothing but the standpoint of the injured party.
Nietzsche perceives two elements in punishment. First we have, in the custom and act of punishment, the " relatively permanent element," "a certain rigid sequence of methods of procedure," extremely cruel at one era, comparatively mild (whether useful or not) at a later era. Secondly, we have what Nietzsche calls "the fluid element," under which term he refers us to 'the meaning, the end, the expectation which is attached to the operation" of the procedure of punishment. If, he argues, we consider punishment in the light of history, no absolute definition of it is possible. We cannot nowadays, for instance, give any precise reason for punishment, since the term is as uncertain, variable, and accidental as any term could be. Thus we may punish to render the criminal incapable cf further injury. We may punish as compensation for the injury inflicted and sustained. We may punish to restrict the spreading of any serious disturbance of the social equilibrium. We may punish "as a means of inspiring fear of those who determine and (execute the punishment." Yet again, punishment may be devised as
A festival, as the violent oppression and humiliation of an enemy that has at last been subdued; as the payment of a fee stipulated for by the power which protects the evil-doer from the excesses of revenge; as a compromise with the natural phenomenon of revenge, in so far as revenge is still maintained and claimed as a privilege by the stronger races; as a declaration and measure of war against an enemy of peace, of law, of order, of authority, who is fought by
society with the weapons which war provides, as a spirit dangerous to the community, as a breaker of the contract on which the community is based.
On the question of the value of "prisons and houses of correction" Nietzche is quite in line with the liberal school of modern penology. This kind of punishment, he admits, may possibly "tame 39 the offender, but can in no way make him "better." Nietzche long ago realised that faith in this kind of punishment is everywhere on the wane. Speaking generally, he declares that
It hardens and numbs, it produces concentration, it sharpens the consciousness of alienation, it strengthens the power of resistance. When it happens that it breaks the man's energy and brings about a piteous prostration and abjectness, such a result is certainly even less salutary than the average effect of punishment, which is characterised by a harsh and sinister doggedness. The broad effects
which can be obtained by punishment in man and beast are the increase of fear, the sharpening of the sense of cunning, the mastery of the desires so far as it makes him bad. Fortunately, it often enough makes him stupid.
As for the mastery of the desires in prison, this is seldom obtained except at the cost of reducing the prisoner to a state of mental and moral nothingness. It can be brought about in the famous Belgian prison, in which, in the course of twenty or thirty years, violent criminals are often reduced to the condition of second childhood; but in a sentence of seven or ten years in an English penal establishment, a convict, so far from obtaining the mastery over his desires-acquisi. tive, sexual, whatever they may be generally finds that they are somewhat unnaturally stimulated in him. And there is surely nothing "fortunate," whether for society or for the criminal,; in the circumstance that imprisonment occasionally "makes him stupid." As the result of his stupidity he usually returns to prison. He may be not so dangerous to society, but he is still as a more or less regular inmate of gaol, a burden on the community which pays for his keep in that place.
The whole philosophy of Nietzsche is still, and for a generation perhaps will be, at the bar of criticism. Hostile reviewers declare that it has already been dismissed, but even among these hostile reviewers it continues to provoke discussion from which the heat has not evaporated; and this is proof enough that Nietzche is yet an intellectual force to be reckoned with. His philosopy will sink perhaps; the civilisation he was ceaselessly at war with will overrule, condemn, and contemn it; but there will remain Nietzsche, the greatest prose poet of modern Germany, the greatest literary artist in Germany since Goethe.
It is from the Genealogy of Morals that the imperfect argument of this article has been taken. The Gospel of Superman, the first work concerning Nietzsche to be translated from the French, is one of the clearest expositions that we have of the whole Nietzschean scheme. The Life by Halévy is perhaps the best of all accounts of Nietzsche's mental development, and has a fascinating introduction (on the whole a touch too scornful) by Mr. T. M. Kettle. The translations in each instance are admirable.
Selected Cases illustrating the Law of Contract. By ARTHUR C. CAPORN, B.A., LL.B., Barrister-at-law, in co-operation with FRANCIS M. CAPORN, Solicitor.
THIS is a most useful collection of cases prepared by lawyers of wide experience in lecturing and teaching. The essential features of each case are presented with notes in a form most useful and economical of the student's time. In a second part some cases dealing with special commercial contracts are given. There is a good index and a table of cases.
Mr. A. P. Poley, B.A., of the Inner Temple, has prepared a second edition of The History, Law, and Practice of the Stock Exchange (Sir Isaac Pitman and Sons), assisted by Mr. F. H. Carruthers Gould, of the Stock Exchange. Part 1 deals with the history and Part 2 with the law and practice, the Gaming Acts as affecting speculative and gaming transactions being. specially considered. Mr. Montgomery Graham has assisted in the section on trustees and colonial investments. The Stock Exchange Rules 1911 are included.
A second edition of the Indian Limitation Act, by T. V. Sanjiva Row (Stevens and Sons), has been issued by