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TAYLOR, ARTHUR WILLIS, Sheffield, beerhouse keeper. July 22.
Ct. Sheffield. WEBB, THOMAS, Bury, chartered accountant. Ct. Bolton. July 19. WAINWRIGHT, FRANK, Nelson, cabinet maker. Ct. Burnley. July 21. WILLIAMS, DAVID, Five Roads, quarry proprietor. Ct. Carmarthen. July 21.
WEEKS, CHARLES, Palmers Green, builder. Ct. Edmonton. July 21.
Amended notice substituted for that published in Gazette, July 14. BARTON, JAMES (practising as Barton, Lees, and Co., and Lees and Co.), late Wigan, solicitor. Ct. Liverpool. July 10.
GAZETTE, JULY 21.
BURGHES, A. M., Paternoster-row, literary agent. Ct. High Court. July 17.
BOURN, WALTER, Richmond, stationer. Ct. Wandsworth. July 18. BARGERY, FREDERICK HENRY, Coed Ely, collier. Ct. Pontypridd, Ystradyfodwg, and Porth. July 18.
BURROWS, EDWIN JOHN, Northampton, shoe operative. Ct. Northampton. July 17.
BAKER, ALFRED HARDING, Westcliff-on-Sea, commercial traveller. Ct.
CARIDIA, ALEXANDER, Devonshire-ter, Lancaster-gate.
Ct. High Court.
COLBOURN, ALBERT EDWARD, Hessle Common, fish merchant. Ct. Kingston-upon-Hull. July 18.
CRITCHLEY, JOHN ALFRED, Moreton, licensed victualler. Ct. Birkenhead.
DAVID, DANIEL, Cefn Cribbwr, collier. Ct. Cardiff. July 19.
FLETCHER, ROBERT, Ilkeston, boot repairer. Ct. Derby and Long Eaton.
GOSLING, ALBERT EDWARD, Sheffield, builder's manager. Ct. Sheffield.
GOWING, ROBERT, Brundall, blacksmith. Ct. Norwich. July 18.
HENRY, JOHN (trading as John Henry and Sons), Norwich, coal merchant. Ct. Norwich. July 17.
HAWKES, PERCY VICTOR, Braintree, printer. Ct. Chelmsford. July 17. JAMES, HARRY WATKIN, Saint Dogmells, sculptor. Ct. Carmarthen. July 18.
LUCAS, BENJAMIN PEARCE, High-st, Camden Town, music hall proprietor.
LYONS, LAWRENCE NATHANIEL, West End-la, West Hampstead.
PALMER, WILLIAM, Stoke-on-Trent, farmer. Ct. Stoke-upon-Trent and
PRESTON, JOHN, Liverpool, fellmonger. Ct. Liverpool. July 19.
PRITCHARD, SAMUEL CASSIN (late trading as William Cassin Pritchard and
RUSSELL, CHARLES, Eastbourne, greengrocer. Ct. Eastbourne and Lewes. July 18.
STOKES, WILLIAM EDWARD, Shirley, late wholesale oil merchant.
Birmingham. July 19.
SMITH, THOMAS WILLIAM, and SMITH, WALTER EDWARD (trading as Smith Brothers), Selby, builders. Ct. York. July 17.
WILLIAMS, JOHN THOMAS (late trading as J. and M. Williams), late Arnside. boarding-house keeper. Ct. Barrow-in-Furness Ulverston. July 18.
WARWICK, LILAS EDITH BEATRICE, Bournemouth West, boarding-house proprietress. Ct. Poole. July 19.
GAZETTE, JULY 25.
ALLEN, FREDERICK STEPHEN PESKETT, Manchester, wholesale fish salesman. Ct. Manchester. July 20.
BIRCH, ALBERT GEORGE, Market Deeping, outfitter. Ct. Peterborough. July 20.
BARFORD, JAMES, Daventry, carrier. Ct. Northampton. July 22.
BELL, RICHARD FELL (trading as R. F. Bell and Sons), Ambleside, ironmonger. Ct. Kendal. July 22.
COWDY, WILLIAM WALLACE, Croydon. Ct. Croydon. July 21.
CHARLES, JOHN, Mountain Ash, draper. Ct. Aberdare and Mountain Ash. July 20.
GRUHN, FERDINAND PHILIP, late Barkworth-rd, Camberwell, grocer. Ct. High Court. July 20.
HANDFORD, JOE (trading as Handford and Handford), Buckingham Palacerd, auctioneer. Ct. High Court. July 20.
HATCHER, FREDERICK RICHARD (described in the receiving order as Frederick Hatcher), Union-st, Borough, licensed victualler. Ct. High Court. July 21.
HAZLEHURST, JOHN WILLIAM, Burnley, grocer. Ct. Burnley. July 21. HARDING, ALFRED SIDNEY COWELL, Torquay, painter. Ct. Exeter. July 21.
HARRIS, ALFRED JAMES, Shoeburyness, builder. Ct. Chelmsford. July 19. JONES, SEPTIMUS, and GRIGGS, BENJAMIN, Wollaston, shoe manufacturers. Ct. Northampton. July 21.
JAMES, JAMES PREECE, Tenby, architect. Ct. Pembroke Dock. July 20. JONES, JOHN, Swansea, licensed victualler. Ct. Swansea. July 21. KITCHEN, CHARLES JOSEPH, Great Grimsby, labourer. Ct. Great Grimsby. July 18.
LILLEY, WILLIAM (trading as Hayhurst, Taylor, and Lilley, and as the Express Removing Company), late Bolton, auctioneer. Ct. Liverpool. July 22.
LEDGARD, ALFRED, Leeds, general dealer. Ct. Leeds. July 19.
MILLS, WILLIAM, Royton, carrier. Ct. Oldham. July 20.
NIX. WILLIAM HILL, Southminster, motor engineer. Ct. Chelmsford. July 19.
OVERBURY, JAMES WILLIAM, Gloucester, butcher. Ct. Gloucester. July 20.
RUSSELL, BARTHOLOMEW FARROW, Carlin How, grocer. Ct. Stockton-onTees. July 21.
RICE, THOMAS GEORGE, Sketty, boot repairer. Ct. Swansea. July 20.
SMITH, ARCHIBALD HENRY, Sutton, auctioneer. Ct. Croydon. July 19.
WEBB, THOMAS, Bury, chartered accountant. Ct. Bolton. July 20.
WHITAKER, SAMUEL, Leeds, glass merchant. Ct. Leeds. July 19.
ADJUDICATIONS ANNULLED. GAZETTE, JULY 25.
PEARSON, JOHN THOMAS, Sheffield, licensed victualler. Ct. Sheffield.
RESCINDED. GAZETTE, JULY 21.
HAMLYN, GEORGE MORISON, Twickenham, master mariner. Ct. Brentford. July 7.
BIRTHS, MARRIAGES, AND DEATHS.
LLOYD. On the 19th inst., at Pilsden Pen, Compton-rd, Winchmore Hill, the wife of E. A. C. Lloyd, Barrister-at-law, of a son.
AITKEN-PIPON-SCHOOLES.-On the 20th inst., at Holy Trinity Church,
STAPLETON. On the 16th inst., at Market Deeping, Valentine Stapleton, of Stamford and Market Deeping, Solicitor, aged 72.
PROVIDENT, AND SIMILAR SOCIETIES. INFANTS AND CHILDREN.
HOUSE DUTY. INJUNCTION ...
INNS AND INNKEEPERS.
Sir EDWARD W. BRABROOK, C B., Dir.S.A., late Chief Registrar of Friendly Societies, and CECIL A. HUNT, Esq., M.A., LL B., Barrister-at-Law.
His Honour Judge TINDAL ATKINSON, P. V. SMITH,
Sir FRANCIS GORE, Barr'ster-at-Law, Solicitor to
A. F. PETERSON, Feq., K C., and C. J. PARTON,
The Right Hon. ARTHUR COHEN, K C., a member
INTERPLEADER W F. A. ARCHIBALD, Esq., a Master of the Supreme
Specimen Articles and Full Prospectus sent on Application. BUTTERWORTH & CO., 11 & 12, BELL YARD, TEMPLE BAR, London.
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Vo. CXXXI.-No. 2563.
KING'S BENCH DIVISION PLASYCOED COLLIERIES COMPANY LIMITED v. PARTRIDGE, JONES, AND CO. LIMITED. - - Company -Action by-Company unable to pay costs of defendant if unsuccessful........ 807 RITSON r. DOBSON.-Friendly society -Action in County Court to recover beneft Jurisdiction County Court judge RAMONECR COMPANY LIMITED 2. BRIXEY.-Agreement in restraint of trade-Covenant not to carry on or be concerned in carrying on a business-Employment as servant 809 DUNFORD AND CO. LIMITED v. CIA ANONIMA MARITIMA UNION.-Ship -Charter party-For six or sen (in charterers' option) consecutive voyages during 1910" METROPOLITAN WATER BOARD (apps) v. BIBBEY (resp.).-Water-RateOwner liable for-Vacant house Cutting off water..... GREVILLE-SMITH (app) v Local government (resp). District councillor-Paid clerk to joint hospital committee............... DERHAM (app.) v. STRICKLAND (resp.). -Local Validity
MITCHAM COMMON CONSERVATORS (apps). Cox resp.); SAME (apps.) COLK (resp). Common Mitcham Common
LEADING ARTICLES, &c.
TO READERS AND CORRESPONDENTS... 311 LEADING ARTICLES.-Topics of the Week-Limitations Within the
Marriage Consideration ............... 311 IRISH NOTES................................................................... 313 COMMENTS ON CASES....................... 314 THE CONVEYANCER........................... 814 OCCASIONAL NOTES....................................................................... 315 NOTES OF RECENT DECISIONS NOT YET REPORTED......... LAW LIBRARY..................................................................... 321 LEGISLATION AND JURISPRUDENCE.Topics
PARLIAMENTARY SUMMARY.- Topics 21 FOREIGN LAW.-Testamentary Dispositions in Pencil ORIMINAL LAW AND THE JURISDIOTION OF MAGISTRATES.-TopicsCounty of London Quarter Sessions: Great Westera and Metropolitan Railway Companies v. Keositon Assessment Committee Same v. Haumersmith Asse smer t Committee : East Loadoa Riwav Joint Committee v. Greenwich Union Assessment Commit'e; Same e. Assessment Committee of Borough of Bermondger: Same . Assessment Commutes of Borough of Stepney....... 325COUNTY COURTS.-Sittings of the Courts...... GENERAL INTELLIGENCE.-Congress on International Law Public Records -The Study of Legal Biography-Heirs-at-Law and Next of Kin-Appointments under the Joint Stock Winding-up ActsCreditors under Estates in Chancery Creditors under 22 & 28 Vict c. 36... 328 PROMOTIONS AND APPOINTMENTS 312
NOTES AND QUERIES......................................... 332
.... 33 2 LEGAL OBITUARY.-Mr. Henry Good Mr. Edmond Carlyon Mr. Daacan Wilkie Paterson, S.S.C.... 333 THE COURTS AND COURT PAPERS.High Court of Justice: Long Vacation Notice
The Law and the Lawyers.
THE Appellate Jurisdiction Bill, introduced by Lord HALDANE, which was read a second time in the House of Lords this week, is the natural outcome of the discussion and the resolution passed at the Imperial Conference in June last. It was then made clear that the time was not ripe for the creation of a single Supreme Court of Appeal for the Empire; but the present measure will lay the foundations for such a tribunal, and will virtually and in substance create an improved single court, although it will still exist in two forms.
THE Bill provides that the sittings of the House of Lords and the sittings of the Judicial Committee of the Privy Council are, so far as practicable, to be arranged in such a manner as not to take place simultaneously, while two additional Lords. of Appeal in Ordinary are to be appointed, but the salary of any Lord of Appeal appointed after the passing of the measure is to be £5000 per annum instead of £6000. was truly stated in the course of the debate, House of Lords and the Judicial Committee have had to rely upon the nucleus of the Lord Chancellor and the four
Lords of Appeal, and, had it not been for the voluntary services and excellent work freely given and done by Lord HALSBURY and other peers who have held high judicial office, it would have been impossible to form even such courts as have been available in the past. The addition of two extra permanent judges and a careful adjustment of the sittings will doubtless facilitate the formation of an Appellate Court strong in numbers, for, as Lord HALDANE pointed out, it was sometimes impossible to secure that the decision of five judges, sitting in a Dominion Court of Appeal, should not he reversed by three or four judges sitting here, and the result has been a good deal of misunderstanding.
WE are sorry to see the proposal to reduce the salaries of future Lords of Appeal, for it cannot be said that £6000 per annum is in any way excessive for a judge who is worthy to sit as a member of the Court of Final Appeal. Further, as we have stated before, we are strongly in favour of only one judgment in a final Court of Appeal, but, at the same time, as the representatives of the Dominions take a different view —and as naturally the matter is for them-the alteration of the practice of the Judicial Committee of only delivering one judgment is a matter of but small moment.
It was not to be supposed that the aspersions cast by Lord LOREBURN upon the Bar in general and the General Council of the Bar in particular would be permitted to pass unnoticed, and at a special meeting of the council held on the 27th ult. the following resolution was adopted unanimously :
That the attention of the General Council of the Bar having been called to the observations made by the Lord Chancellor in the House of Lords on the 12th July 1911 and on the 25th July 1911 upon the discussion of the County Courts Bill, the council desires to remind hie Lordship that the council is by its constitution the accredited representative of the Bar of England, and that in each year one-half of its members are elected by the Bar so as to ensure that the counci! shall be in close and constant touch with the opinion of the Profession, and that many of its members are specially conversant with the practice in the County Courts.
The council further desires to add that no contradiction or correction of any of the facts set forth in the memorandum re the condition of business in the County Courts prepared by the council has ever been brought to its notice.
The council desires to place on record its emphatic repudiation of the suggestion that in opposing certain provisions of the abovementioned Bill the council has been actuated by any interested motive, and its regret that euch an imputation should have been ever made.
POINTS of view are always interesting. As is well known, when the proposition was brought forward for the increase of the judges in the King's Bench Division-an increase amply justified-the present Lord Chancellor was one of its strenuous opponents, his view being that the judges of that division might well do more work and reduce the arrears that had then accumulated. Lord LOREBURN's opinion with regard to the County Court judges no doubt is still fresh in the minds of our readers, and the inference to be drawn from his observations seems to be that they lead a life of well-remunerated and comparative indolence. During the debate on the second reading of the Appellate Jurisdiction Bill, Lord LOREBURN gave us an insight into his opinion concerning his own labours. He stated that, speaking for himself, he would go on as long as he could doing his best; but he declared that the time was coming and was near at hand when the combination of the duties of Speaker of one of the Houses of Parliament, of a judge of the Court of Appeal, of a member of the Cabinet, to say nothing of the administrative duties relating to lunacy, magistrates, and other matters, might be too much for the strength of anybody unless it was mitigated by the lightening of the burden in some direction.
We do not for one moment suggest that Lord LOREBURN does not work hard and does not fully earn the remuneration which he receives; but an analysis of the hours of work performed by him on the Woolsack in the House of Lords and in presiding over that body in a judicial capacity and the Judicial Committee of the Privy Council, even adding his Ministerial duties, would show that they are not much in excess, if at all, of those of the average County Court judge, while they are undoubtedly performed in more pleasant surroundings and with far greater facilities for lightening the work. Our judges, both in the High Court and in the County Court, have discharged and still discharge their duties to the best of their ability and physical power, and we emphatically protest against the suggestions which have been made against them, which have no foundation whatever in fact.
ACCORDING to the sixty-fifth report of the Commissioners in Lunacy on the 1st Jan. this year the number of certified insane persons under care in England and Wales was 133,157, a number exceeding that recorded at the beginning of 1910 by 2604. That known insanity of recent years has been on the increase is shown by the fact that the increases for the preceding three years-1907-1909-were 2096, 2703, and 1766, the average annual increase for the ten years ending Dec. 1910 being 2521, and that for the five years ending on the same date 2236. The matter, however, is perhaps not as serious as would seem from these figures at first sight, and there is no doubt that the figures given are to a large extent due to better diagnosis and the steps taken under the existing lunacy laws.
THE private patients under care at the beginning of this year numbered 10,890, of which 4709 were males and 6181 females, being an increase on the figures for the preceding year of 25 per cent., the male patients having increased 1.9 per cent. and the female 3.1. Pauper patients at the same date numbered 121,172, males numbering 56,142 and females 65,030, the former having increased by 1.8 per cent. and the females by 1.9 per cent. In this class the female sex has always markedly predominated, although the difference is not as accentuated as it was fifty years ago. With regard to private patients, in 1859 the males were in excess of the females, but from 1890 the proportion was reversed, and that position has been maintained ever since. The criminal insane consist of 832 males and 263 females, the net increase for the year being fifty-nine.
COMPARING the insane with the general population as between the 1st Jan. 1859 and the 1st Jan. 1911, the certified insane have increased 262.2 per cent., and the estimated population only by 85 8 per cent. commissioners point out that they are now in a position to contrast with some accuracy from the year 1869 onwards the growth of the general population, the increase in numbers of the certified insane, and of the numbers annually committed to care; and they can also compare the ratios which these two latter have borne to the population for this period of forty-two years. They state that during this time "the population is estimated to have increased by 64 6 per cent., the insane community (as known to us) by 150.4 per cent. The numbers admitted to care during 1869 were 10,472; in 1910 they were 21,861. . . The ratio of insane to population, which on the 1st Jan. 1869 was 23:93 per 10,000, had risen to 36 40 on the 1st Jan. 1911, an increase of 521 per cent. The ratio of admissions to population, which in 1869 was 4 71, was 6 04 in 1910, an increase of 282 per cent."
WE note that the commissioners say that "the increase in the number of the insane recorded year by year is no proof
of an actual growth of insanity in the community, although it is often assumed to be such. There are in point of fact no sufficient data for a correct judgment on the latter head, and such facts as are available tend to the conclusion that, if insanity is increasing at all, it is doing so very slowly and by no means proportionately to the increasing numbers of insane persons under care." They go on to state that "whether insanity be increasing or not, there can be no question that the increasing numbers for whose care and treatment provision has to be made are due to 'accumulation,' or, in other words, the increase in chronic and irremediable insanity due to survival." Every year since registration has been in force the numbers admitted have exceeded the losses by discharge and death.
LIMITATIONS WITHIN THE MARRIAGE
EVER since the case of Newstead v. Searles (1 Atk. 265) there seems to have been a conflict of authority as to what persons are within the valuable consideration of marriage under the limitations of a marriage settlement. In that case the facts were shortly as follows: A widow who had two children by a former husband, and no provision made for them, and each of such children having a child and being in pos. session in her own right of freehold, copy hold, and leasehold estates, by articles before her second marriage, to which her husband was party, and with his consent, conveyed the whole to trustees, in trust to divide the same, if no issue of the marriage, in moieties, one to the plaintiff, her grandson, his heirs and assigns, and the other to her granddaughter in fee, with a proviso that, "if there should be any child or children of the marriage, that child or children should have an equal share of the said estates with the grandson and the granddaughter." There were no issue of the marriage. The husband and wife mortgaged the settled estates to persons who had notice of the settlement, and it was held that the settlement was not voluntary, but a binding one, and that there was no instance where such a limitation had been held fraudulent and void against subsequent purchasers or creditors, for, if it could, no widow on her second marriage would be able to make any certain provision for the issue of a former marriage. Lord Hardwicke thought it a strong circumstance that there were reciprocal considerations both on the part of the husband and wife by the provision under the articles for the children of the second marriage."
In Clayton v. Earl of Wilton (6 M. & S. 67, note) real estate of the husband was settled on marriage on the plaintiff for life with remainder to secure a jointure to his wife, with remainder to the use of the first and other sons of the husband on the body of the wife to be begotten in tail male, "with remainder to the use of the first son of the husband on the body of any woman he might happen to marry after the decease of the wife in tail male," with remainders over. The wife died without issue, and the husband, before he married again, sold and conveyed part of the said hereditaments to a purchaser for value, and it was held that such conveyance was not valid against the issue of the second marriage.
In Clarke v. Wright (6 H. & N. 849) the facts were as follows: A widow had a child by her first husband before her marriage with him. After his death, on the occasion of her second marriage, she executed a marriage settlement which recited that on the treaty for the intended marriage it was agreed that certain lands of hers should be settled as thereinafter mentioned, and then conveyed the land to trustees in trust for her separate use for life, with remainder as to part of the lands to her intended husband for life, with remainder to her child by her former husband, and as to the residue of the lands to that child in fee. The husband and wife afterwards joined in mortgaging the estates and died, and the mortgagees ultimately sold the property, and it was held by the Court of Exchequer Chamber (dissentiente Mr. Justice Williams) that the limitation in favour of the child was valid and was not avoided in favour of purchasers for value by virtue of the statute 27 Eliz. c. 4. Mr. Justice Blackburn in the course of his judgment suggested that the question was one of contract rather than of consideration, and cited with approval the following observations in the then edition of Dart's Vendors and Purchasers, p. 578-9, and at p. 923 of the 7th edit. "It is submitted that where the limitations over are in favour of collateral relations or connections not of the settlor, but of the other contracting party (whether wife or husband), the settlement itself may be considered prima facie evidence of such other party having stipulated for their insertion. So, where on a settlement of the intended wife's estate the limitations over are in favour of her own collateral relations in derogation from the husband's marital right by survivorship (in the case of personalty) or as tenant by the courtesy (in the case of realty).
Where in any case other than that last referred to, the limitations over are in favour of the collateral relations or connections of the settlor, such presumption cannot so readily arise; but it might be proved that the other party stipulated for their insertion. If such a stipulation cannot be presumed or proved, the limitations must, it is conceived, be considered voluntary and void as against a subsequent bona fide purchaser." Chief Justice Cockburn based his judgment principally upon the cases of Newstead v. Searles and Clayton
v. Earl of Willon. In Mackie v. Herbertson (9 App. Cas. 303) the House of Lords decided that when the persons who are within the consideration of the marriage take only on terms which admit to a participation with them others who would not otherwise be within the consideration, then not the matrimonial consideration but the consideration of the mutual contract extends to and comprehends them.
In De Mestre and West (64 L. T. Rep. 375; (1891) A. C. 264) it was decided by the Judicial Committee of the Privy Council that a limitation in a marriage settlement in favour of the settlor's illegitimate child and his issue, not being within the marriage consideration, may be defeated by a subsequent conveyance by the settlor to a purchaser for value, unless that result would involve the defeat of other limitations within the marriage consideration, but neither a special agreement between the parties in favour of the limitation, nor acceptance by one of the parties of different interests in the settled property from those which the law would have given, nor the omission to provide therein for all or some of the issue of the marriage, are sufficient to support such a limitation against a purchaser for value. The court considered that Newstead v. Searles and Clayton v. Earl of Wilton were decided on the ground that the order of the limitations in both those cases was such that the limitations which were not within the marriage considera. tion were covered by those which were, 80 that those which were within the marriage consideration could not take effect in the form and manner provided by the instruments without also giving effect to the others. Clarke v. Wright was dissented from, Lord Selborne in the judgment, referring to the proposition that, although provisions in favour of collaterals in marriage settlements were not within the marriage consideration, yet they might always be brought within it if the parties so intended, said: "If sound, it would go far to destroy the general rule, for it is recited in almost every marriage settlement that all the provisions made in it, whether for the parties themselves and the issue of the marriage, or for anyone else, are made pursuant to agreement." That case was followed in Attorney-General v. Jacobs Smith (72 L. T. Rep. 714; (1895) 2 Q. B. 341), in which it was held by the Court of Appeal that a widow's children by her first marriage, in whose favour she settled personal property, reserving a life interest, by a settlement made upon her second marriage, are "volunteers within the meaning of sect. 11 of the Customs and Inland Revenue Act 1889, amending sect. 38, sub-sect. 2 (c), of the Customs and Inland Revenue Act 1881, and are chargeable with duty accordingly. It seems, therefore, now to be settled that only the spouses and issue of the marriage are within the marriage consideration, but where the limitations are in favour of collaterals as well as of the issue of the marriage, so that the latter cannot take effect without giving effect to the former, then such collaterals cannot be treated as mere volunteers.
THE question has been referred to the town solicitor of Belfast whether the corporation of that city has legal power to provide a mace for the city. It appears that Belfast does not possess a suitable mace, and, on the occasion of the recent visit of His Majesty to Dublin, the city was not able to take advantage of the royal com. mand, on the occasion of the presentation of an address to His Majesty, that the Lord Mayor, the high sheriff, and the town clerk should be accompanied by the mace-bearer. A resolution has now been adopted that a mace should be provided for the city, but the town solicitor must first report whether the corporation has power to provide one.
In the matrimonial suit of Watson v. Watson, which was tried by Mr. Justice Dodd at the Belfast Assizes on the 24th ult., his Lordship in charging the jury gave an interesting historical account of the different changes with reference to the law of divorce which has taken place in England and Ireland during the last sixty years, and he pointed out the reasons why the Irish courts have never been accorded jurisdiction to decree divorce a vinculo, but have been limited in their jurisdiction to divorce a mensa et thoro. An action for damages for criminal conversation (a form of action which still survives in Ireland), arising out of the same transaction (Watson v. Fitzsimon), was heard by the same judge. It was proved that the wife had left her husband (the plaintiff), had got a divorce in one of the American States, and then had gone through a form of marriage with the defendant. Under those circumstances, it would have been thought that the jury would have awarded comparatively small damages; but they awarded the somewhat surprisingly large sum of £125.
AN additional rule of court has been made by the judges in Ireland for the purpose of carrying out the terms of the Foreign Tribunals Act 1856. This rule provides that where in any civil or criminal matter pending in a foreign country a letter of request from the court in such country for service on any person in Ireland of any process in such matter is transmitted to the Supreme Court in Ireland by the Secretary for Foreign Affairs, the procedure which is now laid down must be adopted. The letter of request must be accompanied by a translation thereof in English. Service of the process or citation is to be effected, in accordance with the practice of the Supreme Court in Ireland, by the solicitor for the person suing out the process or citation, or, in the event of there being no such
Folicitor, by the Treasury Solicitor in Ireland. After service has been effected, a copy of the process must be returned by the process-server to the master of the King's Bench Division, together with evidence of service by affidavit. The costs of service are to be taxed by a taxing master, and the master of the division is to transmit to the Secretary for Foreign Affairs the letter of request, together with the evidence of service and a copy of the charges as certified by the taxing master.
THE Departmental Commission which was appointed some time ago to inquire into the effect which the recent changes in the ownership of land in Ireland has or may be expected to have on inland fisheries is proceeding actively with its inquiries. The commissioners are taking evidence at present in the north of Ireland, and it is stated that the tenants who had acquired fishery rights had not yet begun to net fish, but it is stated that that method is in contemplation at present. It is evident that if the tenant purchasers combine and pool their rights they can convert stretches of rivers flowing through their lands into valuable angling properties. Unless this is done, however, the fishing rights of each small peasant proprietor cannot be of very much value. A considerable amount of evidence has been given as to the poisoning of rivers by flax-water and by deposits from factories. Those who are interested in the subject complain very bitterly that when prosecutions are brought the magistrates generally inflict a nominal fine. They were in the habit of inflicting fines of one penny; but they found that that was illegal, as one-third of the amount could not be awarded to the plaintiff. Now," said one of the witnesses, they make the fine 3d. and order one-third to be paid to the bailiff." It is suggested that the drift nets that are used along the coast are much too long and prevent the fish having a chance of getting up the rivers. There is a test case on this matter pending at present before the House of Lords.
COMMENTS ON CASES.
THE important, if highly technical, point that was decided by Mr. Justice Swinfen Eady against the plaintiffs in the case of Central London Railway Company v. Commissioners of Land Tax for City of London (104 L. T. Rep. 245), and in respect of which they recently appealed to the Court of Appeal (noted ante, p. 292), was said by their counsel to be res nova. Counsel for the defendante, on the other haud, relied on the observations of Lord Watson in delivering his opinion in the case of Metropolitan Railway Company v. Fowler (69 LT. Rep. 390; (1893) A. C. 416, at p. 427). His Lordship there stated his view as to whether the underground tunnel of the railway company in that case was liable to the incidence of land tax. plaintiffs' contention was that the redemption of land tax on land abutting on a highway extended to the middle line of the highway. While that proposition was disputed in toto, the argument urged on behalf of the defendants was that, even if the land tax had been redeemed in respect of the land beneath which the plaintiffs' railway had been constructed, yet that the railway and works were a new bereditament, and that as no redemption of land tax had been effected in respect of such new hereditament, the plaintiffs were liable to pay land tax in respect thereof. Mr. Justice Swinfen Eady, however, decided in favour of the plaintiffs on that point, so that the appeal was confined to their main contention. That was based on the long-established presumption that a grant of land adjoining and abutting on a highway passes, not only the land described by metes and bounds, but also half of the soil of the highway: (eee Rex v. Landulph, 1 M. & R. 393; Micklethwait v. Newlay Bridge Company Limited, 55 L. T. Rep. 336; 33 Ch. Div. 133; and Mappin Brothers v. Liberty and Co. Limited, 87 L. T. Rep. 523; (1903) 1 Ch. 118). It is a presumption that is capable of being rebutted; but if it is not so, the owner of the land is owner of the highway usque ad medium filum. The entire ownership a centro usque ad cœlum is vested in the owners of the adjoining land. Thus a house includes a moiety of the street or road in which it is situate. But in Mr. Justice Swinfen Eady's opinion there was no ground for presuming that half of the highway was included in the assessment to land tax of land abutting thereon, or that, when the tax on the adjoining land was redeemed, such redemption extended to the middle of the highway. With this conclusion the Master of the Rolls and Lord Justice Kennedy-constituting the majority of the learned judges of the Court of Appeal-could not see their way to agree. Lord Justice Farwell, on the contrary, was of opinion that Mr. Justice Swinfen Eady's decision was right, and that the appeal ought to be dismissed. As to the reliance that was placed upon the observations of Lord Watson, to which we have above alluded, the Master of the Rolls did not think it right to attribute to the dictum of that great judge the weight of a deliberate judgment upon a point not distinctly raised before him. One of the grounds for the contention of the defendants was that, where land tax is redeemed, the redemption only extends to the land on which the land tax redeemed was assessed, and the certificate of the contract is the proper evidence of what land was assessed and exonerated. But the Master of the Rolls saw no reason for holding that the assessment of the land and the certificate of the contract for redemption were documents to which the presumption did not apply, and that they did not, as a matter of construction, include a moiety of the highway, which might be included without being na med. Another ground was that land tax was assessed on the occupier of the land, and that a highway could not be the subject of
Feneficial occupation for the purpose of assessment. The Master of the Rolls, however, considered that it was a fallacy to assert that there could be no such beneficial occupation. He gave as illustrations the right to wells, vaults, or cellars under the highway, or to grant licences for carrying wires over it. Lord Justice Farwell, on the other hand, had many cogent reasons to offer in support of the view which he entertained. And seeing that, by his concurrence in the decision arrived at by Mr. Justice Swinfen Eady, the expression. of judicial opinion has become equally divided, the assistance of the ultimate tribunal seems desirable on so doubtful a point.
THE decision of the Court of Appeal in Batt v. Metropolitan Water Board (noted post, p. 318), reversing that of the Divisional Court (Justices Ridley and Avory), is one of considerable importance. The plaintiff was walking along a highway and was tripped by a stopcock box situate therein. The box was in a condition of disrepair. It formed a portion of the apparatus used in connection with the pipe communicating from the main to a house. The lid to the box had disappeared, and there was therefore exposed a hole about 6in. deep and 4in. wide. There seemed no information when or by whom this box had been constructed or laid. The plaintiff sought for compensation for injuries sustained, and the defendants alleged that they were not liable. They based their defence on the ground that since the Metropolitan Water Board (Charges) Act 1907 passed, sect. 8 of it operated to transfer to the owrer or occupier of the house any liability which might have existed. The County Court judge accepted this argument, deeming that section retrospective and imposing on the owner or occupier an obligation of repairing communication pipes, and not only those constructed after 1907, but also those in existence when the Act was passed. The plaintiff, appealing from this, placed reliance on Chapman v. Fylde Waterworks Company (71 L. T. Rep. 539; (1894) 2 Q. B. 599), wherein it was decided that the owner or occupier was under no obligation to keep the communication pipe or apparatus in repair, for the reason that the water company had the power to break open the ground. This case itself followed a case before the Court of Appeal, East London Waterworks Company v. St. Matthew, Bethnal Green (54 L. T. Rep. 919; 17 Q. B. Div.. 475), in which a decision closely corresponding with that was giver. The Divisional Court failed to find anything suggesting a retrospective operation as regards the section, and they reversed the judgment of the County Court judge. The Court of Appeal now express themselves in a sense adverse to the Divisional Court, and the judgment of the learned County Court judge is restored. A great deal of importance may attach to this case, for it is notorious that there stop-cock boxes are frequently imperfect, and owners or occupiers are not alive to their responsibility in the matter of repairs. The statute is certainly far from convincing, and it is somewhat curious to note that, unless a retrospective operation be given to the section in question, the defendants would not be able to charge for water except when houses were supplied with water for the first time after the Act passed. It is as well that, one way or another, this question of retrospectiveness should be settled, for Mr. Justice Phillimore in unreported case is stated to have held that sect. 8 was retrospective.
MISCELLANEOUS PRECEDENTS (continued).
Conveyance of Land to a Municipal Corporation for Statutory
THIS INDENTURE made the A B. of county of
Purposes. day of
and C. D. of
BETWEEN in the county of in the (hereinafter called "the vendors") of the one part (hereinafter called "the corporation") of the other part. WHEREAS E. F. late of duly made his will dated the day of 19 and thereby appointed the vendors to be the executors thereof. AND WHEREAS the said testator died on the day of 190 without having revoked or altered his said will and on the day of 190 his said will was duly proved by the vendors in the District Probate Registry. AND WHEREAS the said E. F. was at the time of his death Beised in fee simple in possession free from incumbrances of the hereditaments hereinafter described and hereby assured. AND WHEREAS the said hereditaments are required by the corporation for the purposes authorised by the X. Corporation Act 19 AND WHEREAS the corporation have under the powers of the said Act and the Acts incorporated there with agreed with the vendors as the personal representatives of the said E. F. deceased to purchase the said hereditaments and the fee simple thereof in possession free from incumbrances at the price of £ which sum it was agreed should include the value of all mines and minerals under the hereditaments hereby assured and also compensation for severance and damage of all kinde whether temporary or permanent which may be done to any other the lands or hereditaments of the vendors or of their testator by the company taking or using the said hereditaments for the purpose aforesaid or exercising any of their rights and powers under the said Act or any of the Acts incorporated therewith. Now THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the sum of £ now paid by the corporation to the vendors as such personal representatives as aforesaid (the receipt of which sum the vendors vendors hereby acknowledge) the