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83 PERSONAL REPRESENTATIVES of the said E. F.
[The First Schedule above referred to.]
Mr. Justice Horridge will sit for the first time as Vacation judge in the Lord Chief Justice's court on Wednesday next, the 9th inst., at eleven o'clock, to hear motions, applications, and other Vacation business.
When the courts rose last Monday for the Long Vacation, six of the judges of the King's Bench Division were still away on
Mr. Justice Ridley will go the Midland Circuit at the ensuing autumn assizes. The commission days, however, have not yet been fixed.
Mr. Justice Phillimore and Mr. Justice Horridge will go the NorthEastern Circuit at the ensuing autumn assizes, but the commission days have not yet been fixed.
Mr. Justice Pickford will go the Oxford Circuit at the ensuing autumn aseizes. The commission days have not yet been fixed.
The next general sessions for cases arising on the north and south sides of the Thames will commence on Tuesday week, the 15th inst, at the Sessione-house, Newington, at 10.30.
The Borough Quarter Sessions for Tenterden will be held on Friday
Lord Justice Vaughan Williams and Lord Justice Kennedy have arranged to spend the first part of the Long Vacation at Marienbad. His Honour Judge Cluer sat as an assistant judge at the Clerkenwell County Court for the first time last Monday.
Superintendent Mullineux, of Liverpool, has been appointed Chief Constable of Bolton. He has risen from the ranks.
Mr. Broughton Edge, revising barrister, has fixed the 8th, 9th, 11th, and 12th Sept. as the dates for the revision of the voters' lists in North and South Kensington.
The Festiniog Urban District Council has decided to accept the resignation of the town clerk, Mr. R. Davies, solicitor, who was election agent to Mr. Masterman at West Ham.
In the final match of the golf tournament open to His Majesty's judgee, played at Sunningdale on the 29th ult., Sir Horace Avory beat Sir Alfred Lawrence, and thus won the cup presented by the Lord Chief Justice.
Lady Williams died on the 27th ult. at Lyme Regis. She was the third daughter of the late Right Hon. Lord Justice Lush and sister to Mr. Justice Lush. She married in 1865 as his second wife Mr. Justice Watkin Williams, who died in 1884.
The Recorder of Liverpool, Mr. E. G. Hemmerde, K C., at the City Sessions on Monday, sentenced Edward Gillbanks, aged twenty-six, a carter, who was convicted of being an incorrigible rogue, to receive twenty-five strokes with the "cat" and to serve twelve months in prison.
Mr. Martin Archer-Shee states that, in reference to the case of bia FOD, George Archer-Shee, whose enforced removal from the Royal Naval College, Osborne, was the subject of litigation last year, he has been offered and accepted a sum of £7120 as compensation by the Admiralty.
The Benchers of Gray's inn have resolved that from the 1st Aug. until the 30th Sept., inclusive, children (boys over ten years of age excepted) be admitted to the gardens of the Inn on fine days, between 6 pm. and 8 pm. No cards of admission are required under this order, which is intended to benefit children of the very poorest class.
A sad discovery was made near Newdioate, six miles from Dorking, on the 27th ult. Mr. Lionel Metchim, barrister-at-law, had been staying in the neighbourhood for the benefit of his health since December, but early in the morning he was found dead, hanging in a shed at the rear of the house where he had been staying. He was thirtyfour years of age, and was called by the Inner Temple in 1899.
A notice has been fixed in Garden Court that "the west Gate to the Temple will be closed from the let Aug. 1911 to the 1st Oct. 1911, both days inclusive." In consequence of this notice members of the Ioner and Middle Temples will be greatly inconvenienced. It is quite obvious the Benchers are not aware of this notice, or the inconvenience O caused. Many complaints have been made, and it is impossible to understand why this particular entrance, which is used more than any other entrance to the Temp'e, should be closed.
Mr. Montagu Sharpe, in his charge to the grand jury at the Middlesex Sessions on Wednesday, said that the last two sessions had shown a considerable diminution in the number of cases for trial, but he was sorry to say that things had gone back to their old level. At the present sessions there were thirty-four persons for trial, and of that number nine were charged with the serious offences of burglary and housebreaking, offences which were still very prevalent in the county.
The report which was published on Wednesday morning in some English newspapers as to the health of the Lord Chancellor of Ireland (Sir Samuel Walker) was contradicted in Dublin the same day. The Lord Chancellor has been suffering from an attack of jaundice, which has followed its normal course, and his medical advisers entertain no anxiety as to his condition. The Lord Chancellor, it is stated, trans. acted a good deal of business at Bray, co. Wicklow, on Wednesday, where he is staying at present.
On Monday the Court of Appeal, consisting of Lorde Justices Vaughan Williams, Fletcher Moulton, and Buckley, dismissed by a majority (Lord Justice Vaughan Williams dissenting) the appeal of Mr. Bottomley from the verdict for damages amounting to £50,000, given against him in the trial of the action of Curtis v. Bottomley. Mr. Bottomley applied for a stay of execution with a view to an appeal to the House of Lords, but on being asked if he would pay the £50,000 into court he stated that he was not prepared to do so.
The French Government has decided to submit to Parliament when it reassembles in the antumn a Bill for the regulation of aerial traffic in France. The authorities consider that it is incumbent upon France, as the country which has taken the lead in aeronautics, to show the way in this matter. Pending the adoption of the Bill by Parliament the Minister of Public Works, whose department is in charge of the proposals which were recommended by last year's International Aerial Navigation Conference in Paris, will issue by decree a set of provisional regulations.
Mr. T. S. Weston, Crown Prosecutor, New Zealand, completed fifty years' practice on the 6th June, having been admitted to the Birat Auckland on the 7th June 1861. Returning to New Plymouth, be practised his profession there until 1868, when he went to Invercargill for a short time. From 1864 to 1873 he practised in Auckland, and then he was appointed a District Judge, first at Napier and then on the West Coast. On retiring in 1880 he resumed practice in Christchurch, and in 1902 removed to New Plymouth, where he continues in active work. He must now be almost the oldest practising barrister.
Lord Desborough presided on Monday over a meeting of the special committee of the London Chamber of Commerce appointed to consider the effect of the Declaration of London on the safety of the mercantile marine and the security of the national food supplies, at which a resolution was passed expressing the opinion that the official explana tions given in justification of the Declaration of London in the debate on the second reading of the Naval Prize Bill did not remove the objections set out in the committee's report to the council of the Chamber, and that all necessary steps should be taken in both Houses of Parliament to give effect to such objections.
The fifth annual report of His Majesty's Inspector under the Aliens Act, which we dealt with on the 24th June (ante, p. 165), has been issued by the Home Office. In an introduction it is stated that last year the alien prisoners numbered 2050, the lowest figure shown since 1895, and the proportion of alien prisoners has Lever at its highest exceeded 2.2 per cent. Sir William Evans Gordon in an interview claims that the report is a complete justification for those who fought in Parliament to exclude foreign criminals from this country. The percentage of crime must be taken in conjunction with the percentage of aliens to the native population.
The Government at Washington is preparing, says Reuter, to accelerate its suit under the anti trust law against the thirteen steamship lines composing the Atlantic Conference. The charge against the conference is that it has attempted to monopolise steerage passenger traffic by an agreement signed in London in 1908. This suit was entered in the Federal Court by the United States Government in January last. The companies sued are the Allan, International Mercantile Marine, International Navigation, Anchor, Canadian Pacific, Cunard, British and North Atlantic, Hamburg-Amerik Holland America, North German Lloyd, Red Star, White Star, and Russian East Asistio lines. The United States District Attorney alleged that there was in existence a contract among the defendants, with the exception of the Russian Line, entered into on the 5th Feb. 1908 in London, apportioning the steerage. passenger traffic and providing for a system of fines in case of the percentage thus apportioned being exceeded. Doubts have all along been expressed as to the legality of the proceedings. It has been suggested that the American Government would be not.. suited as far as the British and other foreign lines are concerned, s it was contended that they could not be brought within the provisions of the Sherman Law without violating treaty rights. A complaint against a German steamship line for violating the Railway Rate Law was recently quashed by the Inter-State Com. merce Commission on the ground that it had no jurisdiction over foreign carriers. The announcement with regard to the commencement of the suit was received in British shipping circles at the time without any alarm, and it has been difficult to appreciate whether the object of the United States Government has been the reduction of steerage passengers' fares, or, indeed, what has been their motive in the matter.
The petty sessions for Stourbridge were held on the 28th ult. for the first time in the new Court-house which has been erected in New-road by the Worcestershire Standing Joint Committee at a cost of £8000. The court is a spacious apartment, and the building also comprises seven cells for males and two for females, an exercise yard, police offices, and living accommodation for one inspector, two sergeants, and twenty-one constables. There was a full bench of justices, and Colonel Walker, Chief Constable of Worcestershire, was also present. The first person to be charged was Richard Gould, of Lye, who appeared to a summons for drunkenness, and in consideration of good character he was discharged.
The Burlington Magazine for August contains an editorial on London and the Fine Arts in 1911, in which the "flood of inept and ridiculous philistinism" which submerged the few artistic efforts at decoration during Coronation time is deplored. Some reproductions of fine silver-point drawings illustrate Mr. Schmidt-Degener's notes on some fifteenth century examples. The editors and R. L. Hobson have notes on some old Chinese Pottery; and other interesting articles are Hispano-Arabic Art at Medina Az-zahra; Notes on the Collections formed by Sir Thomas Howard, Earl of Arundel and Surrey, by Lionel Cust; a Newly-discovered Statue of the Virgin, by Frederic Lees; and Lacquer Work in England, by Herbert Cescinsky.
Part 4 of the Local Taxation Returns 1908-9 was issued on the 27th ult. This part includes the accounts of the London County Council, the Corporation of London, the Visiting Committees of Lunatic Asylums, the Metropolitan Police, the Metropolitan Borough Councils, Boards of Guardians for London Poor Law Unions, and certain other local authorities of the metropolis. The assessable value on the 6th April 1908 in the City was £5,509,735, and in the rest of the county £39,208,764, making a total of £44,718,499. The total receipts, excluding loans, by the various metropolitan authorities amounted to £26,287,095. Of the London County Council's receipts £6,570,842 was raised by public rates, the total raised from this source in the whole area of the County of London being £15,300,763. During the period under review the total expenditure by the various authorities was £25,109,300. Of this sum £11,803,343 was expended by the London County Council, £3,643,072 of the amount being for elementary education. The total expenditure of borough councils amounted to £4,923,812, and that of guardians, the Metropolitan Asylums Board, &c., to £4,611,178. The total sum expended by the Central Unemployed Body was £156,975. The returns being for 1908-9 practically the whole of the particulars now furnished have long since been published in county council and other reports.
With reference to the report on vivisection (ante, p. 300), the Secretary of the British Union for the Abolition of Vivisection writes: "The inspector's annual returns, showing the number of vivisectional experiments performed during 1910, although they show a great increase in the number of the experiments (9454 more than in 1909), do not vary in their stereotyped excuses for the system. The voice of special pleading must surely be heard, by all who are not deaf, in the hackneyed phrases intended as a cop to public opinion. Experiments involving the removal of important organs, including portions of the brain, may be performed without giving rise to pain after the recovery from the operation'; ' In cases of prolonged action of an injected substance, even when ending fatally, the animal is generally apparently well, and takes its food as usual, until a short time before death,' &c. This special pleading becomes so marked in the misleading declaration that the animal must be killed as soon as the main result of the experiment has been attained that it is difficult to acquit the inspectors of wishing to propagate a smooth assurance which, in its literal meaning, really conveys no assurance whatever that the most cruel sufferings may not be endured. The fact that the inspectors are biassed is no secret; it is an even more serious fact than that the returns of the experiments are sent in by the vivisectors themselves."
In the City of London Court, on the 31st ult., His Honour Judge Lumley Smith, K.C., delivered an interesting judgment in insurance case in which Ernest Hooper, 10, Bailey-street, Bridgwater, Arthur Hooper and his wife, 1, Bailey-street, Bridgwater, eued the Liverpool Victoria Legal Friendly Society, St. Andrew. street, Holborn, to recover the sum of £25 as damages for fraudulent misrepresentation in reference to a policy of assurance on the life of Harriet Webber. Mr. Newbolt and Mr. G. G. Archibald appeared for the plaintiffe, and Mr. L. W. J. Costello for the defendants. Plaintiffs' case was that in Dec. 1892 one of the defendants' agents named Newberry pressed Ernest Hooper to insure his mother's life, and that the agent concealed from Hooper that it was necessary for him to have an insurable interest. He had not an insurable interest in her life, and her consent had not been obtained. The representations were fraudulent and reckless. Defendants issued a policy, but they should not have done so, as Hooper's mother was not a member of the society. The sum of 6d. per week had been paid since 1892, and now the plaintiffs discovered that they had no insurable interest. Defendants' agent had actually assigned the policy to another member of the family, using ridiculous language in so doing, when the agent must have known no legal policy existed. The defence was that there had been no misrepresentations, and that the society would be willing to pay the policy when it became a claim. Plaintiffs wanted to void the policy because the life was living longer than was expected. Judge Lumley Smith, K.C., held that the representations made by the agent of the defendants were untrue, and that the insurance was illegal because Ernest Hooper had no insurable interest in his mother's life, and it was not his property because the
policy was in his mother's name. Ernest Hooper did not know of the illegality. He (the judge) accepted the agent's word that he did not know that insurable interest was requisite. Unfortunately there was a rule of law, which sometimes worked hardship, that everybody was presumed to know the law. Plaintiffs and defendants' agent did not in fact know the law, but their manager must of course have known it. Under an illegal contract the payment of money could not be enforced and money could not be recovered back. If the defendants' agent's representations were made fraudulently and not merely mistakenly, the plaintiffs might have recovered, but he did not think fraud was proved. The result was that the defendants could not be forced under legal proceedings to return the premiums paid. Collecting life insurance societies ought to give specific instructions to their agents as to the necessity of insurable interest. The societies ought not to allow ignorant agents to encourage gambling in lives, which was prohibited by statute. He was constrained to find for the defendants, but it would be without costs.
The Law Committee of the Kensington Borough Council reports that it has, at the request of the council, considered a petition, signed by fifty residents of Pembridge-villas, protesting against the nuisance caused by a new service of motor omnibuses in that thoroughfare. The committee points out, as it has done before, that no authority at present has the power to define what shall or shall not be an omnibus route, or to prohibit the running of motor omnibuses along any particular thoroughfare. The committee has also considered a similar petition signed by 175 owners and occupiers of property in Cromwell-road, calling attention to the loss and discomfort caused by the great and increasing traffic of motor vehicles, and particularly urging the removal of a new omnibus service. Upon this the committee reiterates the impossibility of the authorities regulating the routes, but, with regard to heavy motor traffic, recalls that proceedings have already been taken by the council, with the consent of the Attorney-General, against certain firms in respect of the nuisance and annoyance caused by their vehicles in the borough, and that injunctions have been granted in two cases. The committee adds that it has not the slightest doubt that the description of traffic mentioned by the petitioners is not only a serious nuisance to the residents of a thoroughfare like Cromwell-road, but seriously depreciates the value of property along the route traversed, and the committee considers that the council should take such action as lies within its power to secure, if possible, the discontinuance of the nuisance.
At a meeting of the justices held at the Sessions-house, Newington, on the 28th ult., a discussion took place on a motion to authorise the chairman to make such use as he might deem necessary of the existing Court-house at Clerkenwell in conjunction with that at Newington, for such temporary purposes as in his judgment might be found needful. Mr. Watson Surr, in moving the resolution, said that the present position of affairs caused considerable inconvenience. When the scheme was passed under which the Sessionshouse at Newington was provisionally agreed upon as the Central Court-house, the London County Council were contemplating the provision of a new site, but no such site had yet been provided. Negotiations with the City authorities for the use of the Central Criminal Court had been proceeding for months, but nothing had resulted. In these circumstances he thought they should revert to the old position and use Clerkenwell Court-house for the north of the Thames. About 60 per cent. of the population of the county lived in the north, and three-fourths of the triable cases came therefrom, while the resident jurors were 20,000 more. Mr. Wallace, K.C., who presided, said the justices had no power to go back to Clerkenwell and revert to the original position. Mr. Henry Clarke said the question was one of the first importance to those who use the courts. All the public advantage was in favour of a central building. The present accommodation at Newington was a disgrace to London. Mr. Edward Smith, the chairman of the Standing Joint Committee, and a member of the London County Council, said that any negotiations which had been going on with the City authorities with regard to the use of the Central Criminal Court had been entirely unofficial and unauthorised. No change of the kind suggested could take place without the consent of the Home Secretary. He agreed that the present Court-house at Newington was entirely unsuitable. The London County Council ought to decide what they were going to do with the Court-house at Clerkenwell, which was at present only occupied by mice and a caretaker. He could not help thinking that eventually the county council would have to face the expenditure of erecting a hall of justice that would meet the needs of both north and south. The justices could compel the expense by requisitioning for the building they required. The chairman said they were at present working under a scheme which designated Newington as the place for holding the sessions. That would be at an end at the close of this year. There were suggestions from all quarters for the revision of the scheme. Eventually the resolution was carried in the following form: "That, in view of the unsuitability of the Courthouse at Newington for the transaction of the judicial and criminal business of the whole county of London, and the continued delay in the provision of a suitable site and building for such purposes, the chairman of quarter sessions be requested, and is hereby authorised, to take such steps as he may deem necessary."
NOTICE OF REMOVAL.-The Sanitary Engineering Company. Domestic Sanitary Engineers, after thirty-six years occupation of 65, Victoria-street, have removed their offices to No. 2, Army and Navy-mansions, 115, Victoria-street, Westminster (corner of Francis-street). 'Phone: Westminster 316. Telegrams: "Sanitation," London.-[ADVT.]
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
COURT OF APPEAL.
Pankruptcy-Unregistered Moneylender-Loan-Judgment for AmountArrangement as to Payment of Judgment Debt-Bankruptey of DebtorProof based on Arrangement-Jurisdiction of Court to go behind Judg. ment-Illegality-" Arrangement in Respect of Advance and Repayment of Money"-Moneylenders Act 1900 (63 & 64 Vict. c. 51), 8. 2, sub.8. 1 (c). The creditor lent money to the debtor in a transaction which was held to be a moneylending transaction. The lender was not registered as a moneylender. The lender obtained judgment against the debtor for the money lent, and afterwards an arrangement was come to between them the effect of which was that the judgment debt was to carry interest from a date anterior to the judgment, and was to be paid off by quarterly instalments, the lender retaining certain securities which he held for the debt. An order was afterwards made staying all further proceedings on the judg ment against the debtor upon the terms set out in the arrangement. The debtor having become bankrupt, the lender tendered a proof in the bankruptcy based on the memorandum of arrangement. Held, that the proof must be rejected as the original contract was illegal (Bonnard v. Do!t, $4 L. T. Rep. 656; (1906) 1 Ch. 740), and neither the judgment nor the subsequent arrangement prevented the Court of Bankruptcy from going behind the transaction. Held, also, that the arrangement was an agreement "with respect to the advance and repayment of money " within sect. 2, sub-sect. 1 (c), of the Moneylenders Act 1900. Decision of Phillimore, J. affirmed.
[Re Campbell, Ex parte Seal. Ct. of App.; Cozens-Hardy, M R., Farwell and Kennedy, L.JJ. July 28.-Counsel: Clayton, K.C. and Hansell; Rawlinson, K.C. and Harry Dobb. Solicitors: Seal; Arnold and Cubison]
ducation (elementary) — Non provided School-Cleaning of SchoolsAppointment of Caretaker-Right of Managers to appoint—Education Act 1902, s. 7, sub-s. 1.-The plaintiffs, who were the foundation managers and trustees of the C. Roman Catholic School, claimed a declaration that they as such managers, and not the defendant county council as the local education authority, had the right to appoint the caretaker and cleaner of the school. The school had been in existence for many years before the passing of the Education Act 1902. It was then a voluntary school, but was earning the Government grant. After the Act of 1902 came into operation (which was for the county of Durham the 1st April 1904) the school was recognised and had been maintained by the defendant county council as a public elementary school; and after that date the caretaker's and cleaner's work in that school was done by a man named M. and by a woman named K., and these persons were continued in the work after the 1st April 1904, the only difference being that after that date their wages were provided by the defendant council. In Nov. 1904 the defendants approved regulations for the guidance of the district sub-committee of the council, and by regulation 22 the appointment of caretakers and cleaners was declared to be a matter for the sub-committee. In Feb. 1909 the education committee gave notice to M. and to K. terminating their appointments on the 31st May, and on the 31st May the district sub-committee notified the plaintiffs that they (the committee) had appointed M. as caretaker and cleaner of another school, and K. as caretaker and cleaner of the school now in question. The question was whether the local education authority had power under the Education Act 1902 to dismiss and appoint these two persons, or whether in so doing they were not usurping powers which belonged to the plaintiffs as managers. Sect. 7 (1) of the Education Act 1902 (2 Edw. 7, c. 42) provides that "The local education authority shall maintain and keep efficient all public elementary schools within their area which are necessary, and have the control of all expenditure required for that purpose, other than expenditure for which, under this Act, provision is to be made by the managers;
For the plaintiffs it was contended that the powers of management vested in them involved the right and the duty of keeping the school-house in a proper condition, and that the duty of keeping the school clean came within the term " management,' and that therefore the plaintiffs as managers had the right cf appointing the cleaner, and that the defendants were bound to pay the expenses. For the defendants it was contended that as they had the duty imposed on them to maintain and keep efficient the school, it was part of their duty to provide for the cleaning of the school, and that they had the appointment of caretakers. It was held by Hamilton, J. (104 L. T. Rep. 36) that the managers were the persons upon whom there was imposed the duty of causing the school to be cleaned, and that they had the appointment of cleaners and caretakers, but that the defendant council as the local education authority had to pay the expenses thereof. Held (dissentiente Vaughan Williams, L.J.), that the power of appointing and dismissing the caretaker and cleaner was in the local education authority. Appeal allowed.
[Gillow and others v. Durham County Council. Ct. of App.: Vaughan Williams, Fletcher Moulton, and Farwell, L.JJ. May 26, and July 28.-Counsel: C. A. Russell, K. C. and V. S. Browne; Tindal Atkinson, K.C. and Simey. Solicitors: Ridsdale and Son, for Watts and Carr, Liverpool; Maude and Tunnicliffe, for Ralph Simey, Durham]
Income Tax-Undertakings of Corporation-Charge thereon-Income Tax on aggregate Revenue-Taxable Income-Statutory Dividends Fund Account-Transfer to, from Undertakings and Rates-Loans charged on all Undertakings and Revenues-Income brought into Charge-Leeds Corporation (General Powers) Act 1901.-The decision of Hamilton, J. (104 L. T. Rep. 166) reversed (Kennedy, L.J. dissenting) on the construction of the Leeds Corporation (General Powers) Act 1901, and on the ground that, under the decision of the court below, the corporation would be paying income tax twice over on the amount in dispute.
[Leeds Corporation v. Sugden. Ct. of App.: Cozens-Hardy, M.R, Farwell and Kennedy, L.JJ. July 29.-Counsel: Danckwerts, K.C. Ryde, K.C. and Jeeves; the Attorney-General (Sir Rufus Isaacs, K.C.), the Solicitor-General (Sir John Simon, K.C), and W. Finlay. Solicitors: Sharpe, Pritchard, and Co., for Robert E. Fox, Town Clerk, Leeds; Solicitor of Inland Revenue]
Landlord and Tenant- Fixtures - Trade Fixtures. Lease-Shop Covenant by Tenant to complete Fittings-Covenant to deliver up demised Premises in good Repair-Tenant's Right of Removal of Trade Fixtures provided by him under the Covenant.-Appeal of the defendants from the judgment of Darling J. at the trial of the action. The plaintiffs brought this action to recover damages from the defendants for removing fittings from a shop demised by the plaintiffs to the defendants. By a lease made in 1896 the plaintiffs demised to the defendants a shop for the term of twenty-one years, with power for the lessees to determine the lease at the expiration of the fourteenth year; and the lessees covenanted that they would at their own expense erect and complete a suitable shop front to the demised premises with all necessary fittings for the carrying on of the trade of a provision merchant, and that at the expiration or sooner determination of the term they would deliver up the demised premises in good and sufficient repair. The defendants terminated the lease in 1910, and before the end of the term removed from the premises some shop fittings which they had fixed in the premises in pursuance of the above covenant; these were an oak cashier's office, some oak counters, and some wall-fitting shelves. At the trial before Darling, J. it was admitted that all these fittings were "trade fixtures"; and evidence was admitted to prove that the premises were unfinished at the date of the demise, and that a smaller rent was fixed because the lessees undertook to fully fit up the premises as a shop. The learned judge gave judgment in favour of the plaintiffs. The defendants appealed. Held (reversing the judgment of Darling, J., Vaughan Williams, L.J. dissenting), that there was nothing in the provisions of the lease to take away the right of the lessees to remove trade fixtures before the expiration of the term, and that therefore the defendants were not liable for removing them.
[Mowats Limited v. Hudson Brothers Limited. Ct. of App.: Vaughan Williams, Fletcher Moulton, and Buckley, L.JJ. July 6 and 29.-Counsel: for the appellants, Clayton, K.C. and Ernest Todd; for the respondents, Rayner Goddard. Solicitors: for the appellants, C. J. Smith and Hudson; for the respondents, Peacock and Goddard, for Sharp, Harrison, Turner, and Cooper, Southhampton.]
Metropolis-Cabs-Licence to ply for Hire-Commissioner of PoliceDiscretion to grant Licence-Metropolitan Public Carriage Act 1869 (32 & 33 Vict. c. 115), ss. 6, 11-Order as to Hackney and Stage Carriages of 1907.-Under the Metropolitan Public Carriage Act 1869 and the order made by the Secretary of State on the 30th Dec. 1907 under sects. 6 and 11 of that Aot, the Commissioner of Police of the Metropolis has no discretion as to the granting of licences for cabs or stage carriages to ply for hire except in the cases mentioned in clause (b) of the order. Decision of the Divisional Court reversed. Rex v. Commissioner of Metropolitan Police; Ex parle Pearce (104 L. T. Rep. 135) overruled.
[Bex v. Commissioner of Metropolitan Police; Ex parte Holloway. Ct. of App. Cozens-Hardy, M.R., Farwell and Kennedy, LJJ. July 28.-Counsel: Sankey, K.C. and R. J. White; Danckwerts, K.C. and G. A. Scott. Solicitors: Julius A. White; Wontner and Sons.]
Revenue-Income Tax-Foreign Citizen living on Yacht anchored in British Port-Person "residing in the United Kingdom"-5 & 6 Vict. c. 35, s. 108-Income Tax Act 1853 (16 & 17 Vict. c. 34), sched. D. -B. appealed against an assessment made upon him by the Commissioners of Income Tax, by estimate in default of a return. of £10,000 for the year ending the 5th April 1909, under sched. D to the Act 16 & 17 Vict. c. 34, under the provisions of sect. 108 of 5 & 6 Vict. c. 35, and under the following circumstances: The appellant, an American citizen, lived on board a steam yacht anchored in tidal waters in the river Colne off Brightlingsea, within the port of Colchester in the county of Essex. All provisions used by the appellant and the crew of the yacht were conveyed to the yacht by means of boats from the hard way at Brightlingsea, and the same were prepared, cooked, and served on board. The yacht was purchased by the appellant in May 1889. The appel lant thereupon removed her from the British Registry, but did not place her on any other. She flew the American flag, as she had always done since her acquisition by the appellant. Immediately after the purchase of the steam yacht the appellant took possession of her on the Clyde, where she was then lying. After cruising in her for a few weeks he brought her to her present anchorage, and caused her to be anchored as above mentioned in calm water. Since then, for about twenty years, and during the year of assessment,
the yacht has been his place of residence. She does not leave her anchorage, but has always been anchored in the same position under a quarter of a mile from the bank and within the boundaries and jurisdiction of the Rural District Council and the Union of Lexdon and Winstree. The appellant's sole sources of income in the United Kingdom were remittances through London from abroad received at his bank in London, and he stated that he had hitherto not paid any harbour dues, rates, or taxes. The appellant claimed that as a foreign subject and as a person not "residing in the United Kingdom," he was not liable to be taxed for income tax purposes, and parti?cularly having regard to the fact that his yacht where he lived never came out of tidal waters. The Commissioners of Income Tax found that the appellant was resident within the United Kingdom, and as he received annual remittances from abroad they confirmed the assessment. The appellant appealed to the King's Bench Division. It was decided by Hamilton, J. that the appellant was a person ["residing in the United Kingdom" within the meaning of sched. D to the Income Tax Act 1853, and therefore was able to pay income tax on remittances received in the United Kingdom from abroad. The appellant appealed to the Court of Appeal. Held, that the decision of Hamilton, J. was quite right for the reasons which he assigned for the same. Appeal dismissed.
[Brown v. Burt. Ct. of App.: Cozens-Herdy, M.R., Farwell and Kennedy, L.JJ. July 26-Cour se': for the appellant, Danckwerts, K.C. and E. G. Palmer; for the Crown, Sir John Simon (A.-G.) and William Finlay. Solicitors: for the appellant,Holcombe and Banks; for the Crown, Solicitor of Inland Revenue.]
aterworks-Stopcock Box attached to Communication Pipe-Liability of Owner or Occupier of Premises to repair-Metropolitan Water Board (Charges) Act 1907 (7 Edw. 7, c. clxxi.), ss 8. 19.-Appeal by the defendants from the judgment of the Divisional Court (Ridley and Avory, JJ.), reported 104 L. T. Rep. 385. The plaintiff sustained personal injuries owing to catching her foot in a stopcock box connected with the communication pipe which supplied water from a main belonging to the Metropolitan Water Board to certain premises within their area of supply. The stopcock box in question, which had been constructed by the defendants' predecessors, was defec ive by reason of the fact that it had no cover. In an action by the plaintiff against the defendants for damages, it was contended on their behalf that under the provisions of the Metropolitan Water Board (Charges) Act 1907 the stopcock box was the property of the owner or occupier of the premises, together with the communication pipe to which it was connected, and that the defendants were not liable to keep it in repair. The Metropolitan Water Board (Charges) Act 1907, e, 8, provides that "Subject to the provisions of this Act the board shall at the request of the owner or occupier of any house furnish to such owner or occupier or other person by means of a communication pipe or communication pipes and other necessary and proper apparatus to be provided and laid down and maintained by him and at his cost a sufficient supply of water for domestic purposes. Sect. 19 provides that "For the purpose of complying with any obligation under this Act to maintain any pipe or apparatus the person liable to maintain the same shall have the like power to open the ground as is conferred upon him by sects. 48 to 52 of the Waterworks Clauses Act 1847 in relation to the laying of communication pipes." The Divisional Court (Ridley and Avory, JJ.) held that the obligation imposed by sect. 8 on the owner or occupier of the premises to repair a communication pipe was not retrospective, and that the defendants and not the owner or occupier of the premises were liable. The defendants appealed. Held, that the owner or occu ier of the premises was liable to repair the stopcock box, and that he was responsible if it became a source of danger by reason of non-repair. Appeal allowed.
[Batt v. Metropolitan Water Board. Ct. of App: Vaughan Williams, Fletcher Moulton, and Buckley, L.JJ. July 6, 13, 17, and 29.-Counsel: for the appellants, C. A. Russell, K.C. and Ross Brown; fo the respondent, Simner. Solicitors: for the appellants Walter Moon; for the respondent, Arnold and Cubison.]
HIGH COURT OF JUSTICE-CHANCERY DIVISION. Company-Reduction of Capital-on firmation of Scheme-Companies (Consulidation) Act 1908 (8 Edw. 7. c. 69), s. 46-Dissentient Shareholder-Jurisdiction-Discretion-Conditions-Costs of dissentient Shareholder.-A company was incorporated in 1898, having power under its articles by special resolution to reduce its capital. The nominal capital was £1,200,000, consisting of 30,000 A preference shares of £10 each, bearing interest at 5 per cent.; 40,000 B preference shares of £10 each, bearing interest at 5 per cent.; and 50,000 ordinary shares of £10 each. The A shares ranked in priority to the B shares, and the B shares to the ordinary shares. All the capital was paid up, and there was a reserve fund of undivided profits of £266,769 12s. 14. Prior to the 31st Dec. 1910 the company had for a considerable time a contract for the supply of stamps to the Government. From that date the contract was to be, and in fact was, withdrawn, and it was found that the share capital of the company would be excessive by reason of such withdrawal. Accordingly in Dec. 1910 a special resolution of the company was passed and confirmed that the capital of the company should be reduced to £640,000, consisting of 14 000 B preference shares of £10 each and 50.000 ordinary shares of £10 each, by paying off the whole of the A preference shares by means of the reserve fund so far as the amount thereof would go,
and obtaining the residue from T. De La R. on loan without security at 4 per cent, and so cancelling the shares; and by paying off 26,000 of the B preference shares and by issuing to the holders perpetual debenture stock of the company bearing interest at 4 per cent. per annum secured by a trust deed constituting a first mortgage upon the company's premises (leasehold and freehold) and a floating charge upon the company's business undertaking. The 26 000 B preference shares would then be cancelled, the remainder (14,000) being held by T. De La R. At the time of the resolution authority was given to the directors to issue £260,000 perpetual debenture stock of the company. A holder of some B preference shares objected to the scheme for reduction of capital on the ground that the substitution of debenture stock bearing interest at 4 per cent. for preference shares at 5 per coat. was a less valuable security for his investment. A petition was consequently presented asking for the sanction of the court to the proposed scheme. For the petitioners it was urged that under sect 46 of the Companies (Consolidation) Act 1908, by which it is enacted that, subject to confirmation by the court, a company limited by shares, if so authorised by its articles, may by special resolution reduce its share capital in any way, the court had jurisdiction to confirm the resolution, and that the proposed scheme was an equitable one. For the dissentient shareholder it was urged that the court had no jurisdiction to sanction the scheme, and that, even if it had, the scheme was inequitable, and the discretion of the court should be exercised in favour of the respondent. Held, that under sect. 46 of the Companies (Consolidation) Act 1908 the court had jurisdiction to sanction the proposed scheme for the reduction of share capital, and that the objection on the part of the dissentient shareholder that such scheme was inequitable and unfair was unfounded. It was the duty of the court, in the exercise of its discretion, to decide in a case of this kind whether as a matter of business the proposal to create and allot debenture stock for shares was a fair and reasonable exchange, and the necessary sanction should under the circumstances be given, but on the terms suggested by counsel for the company of making the debentures payable forty years from date of issue and not perpetual. His Lordship added that nothing he had said must be taken as an indication that dissentient shareholders should le discouraged in bringing matters of this kind before the court when such matters might influence the decision of the court in arriving at a conclusion upon a proposed scheme, and the dissentient shareholder in this case must have, as a term of the confirmation, his costs provided for by the company. The words "and reduced" would be dispensed with from date of order.
[Re Thomas De La Rue and Co. Limited and Reduced and Re Companies (Consolidation) Act 1908. Ch. Div.: Eve, J. July 18Counsel: P. O. Lawrence, K.C. and T. J. C. Tomlin; W. R. Sheldon. Solicitors: Bristows, Cooke, and Carpmael; Kearsey, Huwe, and Wilkinson.]
Copyright Drawing-Artistic Property-Commercial Use-Not regis. tered under Parents, Designs, and Trade Marks Act 1833-Right to sue -Fine Arts Copyright Act 1862 (25 & 26 Vict c. 68), 8. 1.-The plaintiffs were owners of the copyright, registered at Stationers' Hall on the 24th April 1897 under the statute 25 & 26 Vict. c. 68, for the drawing of a design, to be used for bags and wrappers, containing four panels, in two of which were contained the head and bust of an Eastern man and woman (holding cups of tea) with a band and ornamental border, intended for wrappers for tea, coffee, and similar goods. The bags were sold by the plaintiffa to tradesmen for use with the tradesmen's goods. The defendant, a grocer, having used tea baga bearing the same design or drawing obtained elsewhere than from the plaintiff company, they com. menced an action and moved for an injuntion to restrain the defendant from multiplying, selling, or causing to be printed or published any copies or imitations of their registered copyright drawings as labels or wrappers for tea. One of the defences set up was that a design for a commercial article could not be regis. tered under the Fine Arts Copyright Act 1862 (25 & 26 Vict. c. 68, which applies only to things which are exclusively works of art, and which gives a longer period of protection than that afforded ty the Patente, Designs, and Trade Marks Act 1883 (46 & 47 Vict. c. 57). 88. 47 and 60, now superseded by the Patents and Designe Act 1907 (7 Edw. 7, c. 29), part 2, ss. 49, 53, under which registra tion ought to have been effected. For the plaintiffs Millar and Lang Limited v. Polak (98 L. T. Rep. 378; (1908) 1 Ch. 433) was referred Held, that the plaintiffs' design had been properly registered under the Fine Arta Copyright Act 1882; that registration under the Patents and Designs Act would have given them no protection; and they were entitled to the injunction asked.
[Smith Brothers (Whitehaven) Limited v. Relfearn. Ch. Div.: Eve, J. July 27-Counsel: Laurence, K.C. and Maugham: Napier. Solicitos McKenna and Co.; Juques and Co., for John Trewava, Bradford.]
Tride Mark-Registration-Surname "Adapted to distinguish "Distinction"-Trade Marks Act 1905 (5 Edw. 7, c. 15), 8. 9, sub s, 5. -Application by a company who had carried on the business of electric lamp manufacturers since 1904, the lamps bearing the name Pope," and being known under this name in the trade, for a declaration that the word "Pope" was to be deemed to be "a distinctive mark" within sect. 9. sub-sect. 5, of the Trade Marks Act 1905: and for an order to the Registrar of Trade Marks to proceed with its registration as a trade mark in classes 8 and 13 in respect of incandescent electric lamps. Held, that the word "Pope," being surname and not by nature adapted to distinguish one person of the
name of "Pope" from another, was not "adapted to distinguish" the goods of the manufacturers from those of others; and, further, that, even if it were in its nature adapted to distinguish, the court ought not to make the order, as it could not have been the intention of the Act, in view of the provision as to surnames in sub-sects. 1 and 4 of sect. 9, that names of manufacturers should be registered.
[Re Trade Marks Act 1905; Application of Pope's Electric Lamp Company Limited. Ch. Div.: Warrington, J. July 27.Counsel: Walter, K C. and J. H. Gray; Sir Rufus Isaacs, K.C. (A.-G.), Sir John Simon, K C. (S.-G.), and Sargant for the Registrar of Trade Marks. Solicitors: Ravenscroft, Woodward, and Co.; Solicitor to Board of Trade.]
Trustee-Public Trustee - Administration of small Estate - "Gross capital Value less than £1000-Estate or Trust-Time at which Value ascertained-Public Trustee Act 1906 (6 Edw. 7, c. 55), 8. 3, sub-s8. 1, 2.-C. E D. died intestate on the 19th July 1908, and on the 13th Oct. 1908 letters of administration to her estate were granted by the Principal Probate Registry to the applicant on the present originating summons, A. T., as attorney for one of the next of kin of the deceased resident in the United States. The estate of C. E. D. was of the gross capital value of £1182 14. 8d. Th:ee fifth parts of her estate had been distributed. Two-fifths, reprosented by £571 118. 10d. Consols standing in the names of A. T. and the sureties to his administration bond, remained to be dietributed. The latest date at which any portion of the estate would become payable was on the 21st May 1929. On the 31st Jan. 1911 the Pablic Trustee wrote to A. T. and his sureties that, having been applied to on behalf of infant beneficiaries entitled to the share of their father in the estate of C. E. D., he had under the Public Trustee Act 1906 undertaken to administer her estate; that the whole estate had become vested in him and the administratrix and her attorney were discharged, also requesting the transfer of the documents relating to the estate and funds to him. On the 6th March 1911 the Public Trustee executed a declaration under his hand and seal that he "undertakes to administer the estate" of C. E. D., deceased. For the safety of the administratrix and himself, A. T., the applicant, caused an iginating summons to be issued asking for a decision whether the estate of C. E. D, or the undietributed shares or either of them constituted a small estate within the meaning of the Public Trustee Act 1906, and whether he was justified in handing them over to the Public Trustee. For the applicant it was said that the Act applied to estates and not to trusts as to portions of estates. For the Public Trustee it as argued that the present case fel! within sect. 3, and that, in order to ascertain that the value was less than £1000, the time of the application to the Public Trustee must be regarded. Held, that sect. 3 applied throughout to the estates of deceased persons, and has no application to trusts created by settlement, which are dealt with in Part 3 of the Act. But that, having regard to the wording of sect. 3, sub-sect. 2, which contemplates the Public Trustee intervening at any stage, and the words "is proved to be" (not "to have been") and the power in any particular case given to him to refuse to administer in sect. 3, sub-sect. 1, the estate was a small estate within that section. The applicant must hand over the letters of administration and documents relating to the estate to the Public Trustee.
[Re Devereux; Re Pub'ic Trustee Act 1906; Toovey v. Public Trustee. Ch. Div.: Eve, J. July 28.-Counsel: Lawrence, K.C.; R. Roope Reeve; Tomlin. Solicitors: Moodie, and Sons; L. J. Fulton.] endor and Purchaser-Specific Performance-Contract DepositStakeholder-Rescission-Forfeiture of Deposit. On the 21st Oct. 1910 B. contracted to purchase for the sum of £2450 freehold shops of H. Fifty pounds deposit, part of the purchase money, was, according to the contract, paid to H's solicitors "as stakeholders," the balance to be paid on completion of the purchase. No provision was made as to the deposit, except an agreement for its payment back if the purchaser took objections which the vendor was unable or unwilling to comply with. The matter proceeded until the draft conveyance had been approved by both parties. The purchaser made default in completing the purchase on the day fixed, which was the 11th Nov. 1910. H. brought an action in which he claimed specific performance of the contract and payment of the balance of the purchase money. B. appeared. but made default in delivering a statement of defence. On the 2nd May 1911 judgment was given for specific performance in default of defence, the plaintiff being declared to have a lien on the premises for the purchase money. On the 4th July 1911 the master by his certificate found the balance due to the plaintiff to be £2441 6. 2d. The plaintiff by his notice of motion asked for rescission of the agreement and forfeiture of the £50 paid by the defendant as a deposit to him. On the motion being called on, the defendant did not appear. Dunn V. Vere (23 L. T. Rep. 432); Olde v. Olde (89 L. I. Rep. 604; (1904) 1 Ch. 35); and Williams on Vendors and Purchasers, vol. 2, p. 1055, 2nd edit., were referred to. Held, that the terms to be implied in the contract with reference to the deposit were correctly expressed by Fry, LJ. in Howe v. Smith (50 L T. Rep. 573; 27 Ch. Div. 89, at p. 101). It made no difference that the money was deposited in the hands of third parties and it was paid as an earnest or guarantee that the purchaser would complete his bargain. The vendor, who had done everything to force the purchaser to carry out his bargain, had, notwithstanding Jackson v. De Kadich (117 L. T. Jour. 339; (1904) W. N., p. 168),
applied for a declaration in the proper form, and the contract would be rescinded and the plaintiff declared entitled to the retained deposit. [Hall v. Burnel!. Ch. Div. Eve, J. July 31.-Counɛel : Greaves. Solicitors: Hughes, Bartlett, and Thornton-l
KING'S BENCH DIVISION.
Food and Drugs-False Warranty-Company-Mens rea-Time of laying Information-Sale of Food and Drugs Act 1899 (62 & 63 Vict. c. 51), s. 20 (6).-Case stated on an information laid under eect. 20, sub-sect. 6, of the Sale of Food and Drugs Act 1899 by the respondent for that the appellants on the 17th Jan. 1911 did unlawfully in respect of a certain article of food-to wit, milk-sold by them to Handsley's Limited give a falee warranty in writing, contrary to sect. 20 (6) of the Sale of Food and Drugs Act 1899 (62 & 63 Vict. c. 51). At the hearing the following facts were proved or admitted: On the 9th Aug. 1910 the appellants, who were wholesale milk dealers, agreed to supply to Handsley's Limited, who were retailers of milk, all the milk which they might require at their P. branch, and at the same time gave to Handsley's Limited the following warranty in writing: " As requested by you and for the purpose of the Sale of Food and Drugs Acts 1875 to 1907, we hereby guarantee and warrant that all new milk which may hereafter De supplied by us to you shall be pure new milk with all its cream as yielded by the cow and unadulterated.-THOMAS LIMITED, THOMAS OLIVER, Director.-Messrs. Handsley's Limited, 2, Stannary-street, Kennington, SE." On the 17th Jan. 1911 Handsley's Limited received from the appellants at their P. branch eighty-nine gallons of milk, accompanied by a delivery note. of which the following is a copy: Messrs. Handsley's Limited, 17th Jan. 1911. From Thomas Limited, Wholesale Milk and Cream Contractor. Chief Office, 245, Lavender-hill, S.W.-Please receive milk, morning, eighty-nine gallons." On the 17th Jan. 1911 a servant of Handsley's Limited, in the ordinary course of his employment, sold for the purpose of analysis by the public analyst to an inspector under the Sale of Food and Drugs Acts, acting under the authority of the respondent, a pint of the milk All the requirements of sect. 14 of the Sale of Food and Drugs Act 1875 were complied with. The said pint of milk was when so sold as aforesaid in the same state as when received by Handsley's Limited from the appellants, and, on being analysed by the public analyst, was found to contain 6 per cent. of added water. The fact that the pint of milk was not pure new milk with all its orea m yielded by the cow and unadulterated was not disputed by the appellants, nor was any evidence offered on their behalf in answer to the complaint, but it was objected that no conviction could take place because (a) mens rea was a necessary ingredient of the offence and a limited company was incapable of entertaining mens rea; (b) the warranty was given on the 9th Aug. 1910 and not on the 17th Jan. 1911, and therefore the information which was laid on the 15th Feb. was too late by virtue of the Sale of Food and Drugs Act 1875 (38 & 39 Vict. c. 63), s. 20, and the Summary Jurisdiction Act 1848 (11 & 12 Vict. c. 43), s. 11. The justices were of opinion that mens rea was not a necessary ingredient of the offence, and that the false warranty must be deemed to have been given on the 17th Jan. 1911, the day on which Handsley's Limited received from the appellants the eighty-nine gallons of milk, and they therefore overruled both objections and convicted the appellants. Held (dismissing the appeal), that the justices were right.
[Thomas Limited (apps.) v. Houghton (resp.). K. B. Div.: Lord Alverstone, C.J., Lawrance and Darling, JJ. July 25.-Counsel: Woodcock; Cecil Whiteley. Solicitors: Charles May; Wyatt and Co, for T. W. Weeding. Kingston-on-Thames.] Licensing-Compensation-Lord of Manor-Licensed Premises Part of Manor-Copyhold Tenants - Person interested" - Licensing Act 1904 (4 Edw. 7, c. 23), s. 2 (1).—Case stated. The appellants are the lords of the manor of H. with L., and the freehold of and in all the copyhold lands, tenements, and hereditaments within the eaid manor is vested in the appellants, who are also entitled to all the usual manorial rights. Some of the respondents were the copyhold tenants of certain licensed premises known as the Cross beerhouse at L. within and parcel of the manor and held the same by copy of court roll under an admittance dated the 30th April 1910. The other respondents were the lessees and the licensee of the premises. The manor is a fine arbitrary one, and the lords of the manor are entitled to a fine of two years improved annual value on the admittance of a single tenant on death or alienation, but it is the practice to accept one and a half year's annual value on the admittance of a single tenant on alienation. The first respondents paid to the appellants as lords of the said manor, upon their admittance as copyhold tenants of the licensed premises on the 30th April 1910, a tine of £42, based upon the annual value of the licensed premises as licensed premises being £12. The compensation authority at their principal meeting held on the 23rd June 1910 refused the renewal of the licence of the premises. subject to compensation, pursuant to sect. 1, sub-sect. 2, of the Licensing Act 1904. In consequence of the compensation authority having refused the renewal of the licence of the premises the annual value thereof is considerably reduced. The total amount of the compensation money was agreed at £139 18s., and it was further agreed that if the appellants were entitled to a share of the compensation they should receive the sum of £15 out of the said sum of £139 18s. It was contended on behalf of the appellants that, as the amount of the fines depended