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DURING the past week the Times has published two highly interesting articles on the subject of an Imperial Court of Appeal. At the forthcoming Imperial Conference the Australian Government will propose that it is desirable that the judicial functions in regard to the dominions now exercised by the Judicial Committee of the Privy Council should be vested in an Imperial Appeal Court which should also be the final Court of Appeal for Great Britain and Ireland. It is useless disguising the fact that in certain portions of our oversea dominions, especially in Australia, the Judicial Committee of the Privy Council has by no means been regarded with a favourable eye. From a logical point of view, it has always been difficult to understand why the court of final appeal from the courts of Great Britain should be the House of Lords, while in the case of the colonies final appeals should be to the Judicial Committee of the Privy Council, when, save for the changes brought about a year or two ago, the personality of those tribunals is largely identical.
THE fact that different systems of law have to be administered forms no answer, inasmuch as there is considerable divergence between the Scottish and English systems, both of which are considered by the House of Lords. Rightly or wrongly, there is undoubtedly an impression steadily growing amongst our colonies that the Judicial Committee is not the strongest and most efficient tribunal that might be obtained, and considerable stress is laid upon the fact that its decisions are not binding upon the courts of this country, and it is exceedingly doubtful whether its decisions on cases coming from one part of the Empire are binding upon the courts of another. The ideal court of final resort would eertainly seem to be one upon which our oversea dominions were adequately represented, and one whose decisions would be binding throughout the whole of the Empire. It would seem that the institution of such an Imperial Court of Appeal is not impossible of attainment, and no doubt the discussion at the forthcoming conference will make clear what are the eelings of our colonies with reference thereto.
THE Home Office is now considering representations made to it as regards the regulation of slow-moving vehicles. This matter is one which cannot long be ignored out of regard for the convenience and personal safety of the public, and it is not surprising that questions should have been asked in Parliament and that the Chief Commissioner of Police should have consented to receive a deputation. The Highways Act 1835 contains certain powers in sect. 78 thereof, but at present little or no notice is taken of them, and there are no by-laws adequate to meet the circumstances of obstruction visible to all who traverse Oxford-street, Holborn, or other narrow avenues of traffic. Cardiff and Sheffield, and certain other provincial centres, have either passed or are contemplating traffic by-laws to ensure that all slow-moving vehicles should keep close to the kerb whether or not any other faster-moving object is in sight. Until definite action is taken, business men will have to encounter the irritating and recurring losses of time due to the stupid adherence of slow vehicles to the crown of a road already effectively obstructed in many cases by central standards.
THE judgment of Mr. Justice WARRINGTON in Burghes v. Attorney-General (noted post, p. 33) has provided another check to a Government department that has attempted to place upon the subject a burden not authorised by law. The learned judge came to the conclusion that Form 8, which the Commissioners of Inland Revenue purported to issue under sect. 31 of the Finance (1909-10) Act 1910, was not, authorised by the statute, and that therefore the plaintiff might refuse to comply with the requirements therein set out without incurring the penalty provided by the Act. As
we have pointed out before, recent litigation has clearly demonstrated the unfitness of the executive to be intrusted with judicial powers. In the past, as in the present, the sole safeguard for the public against unwarranted demands on the part of Government departments and officials has been the Judicial Bench; and it will be a bad day for this country if the right of the subject to resort to the courts of law in the case of unlawful interference with his rights is interfered with. The legislation of the past few years has had a tendency in this direction, and it is to be hoped that cases such as Dyson v. Attorney-General, Burghes v. AttorneyGeneral, and Rex v. Board of Education will bring home sharply to the mind of the public the danger of taking the action of the executive out of the control of the courts of law.
TRUSTEES AND MORTGAGE SECURITIES.
THE position of trustees when contemplating the investment of trust funds on mortgage of property is always one involving responsibility, and yet in the vast majority of cases it is feared that this responsibility is treated far too lightly. It is frequently, if not generally, assumed that if the property on which it is proposed to lend comes within the range of their powers of investment, trustees are necessarily justified in accepting the security, and even in lending, as a matter of course, up to two-thirds of its value. But a closer and more careful con-sideration of the matter will show that this is hardly the true position.
In this connection, as in many others, all things that are lawful are not necessarily expedient. Some properties, though. covered by the terms of the power, are from their very nature unsuitable as a security for trust funds. Again, other properties, though not wholly unsuitable securities, demand a larger margin of protection than is usually considered to be necessary in ordinary cases. It is the duty of trustees when investing trust funds on mortgage to act as a prudent man would do in the management of his own affairs.
One of the first things a prudent man would consider is whether the property is suitable to lend on at all; and, having satisfied himself on that point, he would next carefully consider what amount he can safely lend. If the property is liable to deteriorate or is specially subject to fluctuations, a prudent man will require a larger margin for his protection than he would in the case of property attended by no such disadvantages. The maximum amount, therefore, which a prudent man would lend depends on the nature of the property and upon all the circumstances of the case.
The statutory enactment governing this question is, of course, sect. 8 of the Trustee Act 1893. That section provides (shortly) that a trustee lending money on the security of any property on which he can lawfully lend shall not be chargeable with breach of trust "by reason only" of the proportion borne by the amount of the loan to the value of the property, provided that in making the loan the trustee was acting upon the report of an independent valuer and that the amount of the loan does not exceed two-thirds of the value of the property. The words "by reason only" should be specially noticed. Suppose, for instance, the property, owing to its nature or for some other reason, was not a security upon which a prudent man would lend, would a trustee in such a case be protected from liability for breach of trust, although he may have literally complied with all the requirements of the section? Or, again, if the property is such that, though a prudent man might lend on the security of it, he would not lend more than half of its value, would the trustee in this case be free from responsibility if he lends as much as, though not more than, two-thirds of the value, and otherwise complies with the terms of the section?
In such cases as these it is submitted there would be evidence to show that, in spite of the literal compliance with the requirements of the section, the trustee "for other reasons" had not acted as a prudent man; and, there being such other reasons: against the prudence of the investment, could the trustee claim the protection afforded by the section, which, by virtue of the words "by reason only," requires that no such other reasons as above indicated shall exist.
The section before referred to does not, as is generally supposed, abrogate all distinction between different classes of property in determining the margin of protection to be required by a prudent man, or indicate that a prudent man may primâ facie be content in all cases with a margin of one-third of the value of the property. At most, it suggests that the extra margin of protection beyond one-third the value depends on the particular circumstances of each case, and assumes that, whatever may be the nature of the property, the trustee, acting through the expert employed by him, will give the matter his bona fide consideration, advising with a view to the safety of the trust money, and not merely in such a way as to protect himself from liability for breach of trust. Therefore, when once the value of the property has been ascertained, whatever its nature and whatever method of valuation has been adopted, it must not be supposed that trustees are necessarily, or even prima facie, justified in advancing two-thirds of its value. Such a position defeats the object of the section by making what the Legislature has laid down as the standard of the minimum protection which a prudent man will require into the standard of the normal risk which, whatever the nature of the property, a prudent man will be prepared to run.
It is submitted, therefore, that it is as necessary since the Trustee Act 1893, as it was previously, to consider, not only the value of the property proposed to be mortgaged, but also the margin of protection which ought to be required, remembering, as before stated, that such margin must depend on the nature of the property and upon all the circumstances of the case. It should not be assumed that, without the exercise of ordinary prudence, trustees will necessarily be protected from liability by the literal compliance with the provisions of the section referred to, any more than, having exercised due prudence, the mere fact of non-compliance with such provisions necessarily renders them liable. For a fuller consideration of this subject, the recent cases of Shaw v. Cates (1909) and Palmer v. Emerson (1911) may usefully be referred to.
A LECTURE was given in Dublin last week by Miss Constance Smith, under the auspices of the Dublin Branch of the Industrial Law Committee, on "The Law and the Wage-earner." The objects of the Industrial Law Committee are to supply information as to the legal protection of the industrial classes with regard to the conditions of their trade; to constitute a central body to which may be reported breaches of the law and others matters relating to industrial employment; and to consider all information received, and to promote further legislation and the more effective administration of the existing law. Miss Smith in her lecture dealt at length with the various branches of industrial legislation which is now in force, pointed out how that legislation was effected, and made a number of valuable suggestions as to the improvement of the present state of affairs.
MR. ASQUITH's reference to the decay of duelling in his recent speech at the Mansion House in support of the peace proposals of the American Government recalls an amusing incident which took place some time ago in an Irish court. An eminent leader of the Irish Bar, who happens also to be a wit, had subjected one of the witnesses for the other side to an exceedingly severe cross-examination. When the cross-examination had concluded and the witness had resumed his seat, he immediately wrote out a challenge to counsel and threw it across the table to him. Counsel replied that this was a matter that came within the province of junior counsel, and he handed the challenge to the latter with a request that he should deal with it in the proper way. It is believed that this method of dealing with the question did not satisfy the challenger, but the duel did not take place on that occasion.
THE Athlone Rural District Council has come across an unexpected difficulty in their administration of the Labourers Acts. Some time ago, in carrying out those Acts, they built a cottage upon a place which is alleged to be a "fort." The tenant who was put in posses. sion of the cottage now refuses to pay the rent on the ground that the plot of land which he was given is haunted by fairies and that he cannot till it. Of course, it is impossible for the rural district council to evict the fairies, and if they cannot give clear possession to the labourer, it is obvious that he is entitled to decline to pay the rent. One of the councillors very properly observed that "there never did come any luck out of interfering with such places." The majority of the councillore, however, took a more prosaic view of the situation and ordered the clerk to institute proceedings for the recovery of the rent. In the event of the labourer defending these proceedings, an interesting question of law and fact will be raised for the decision of Judge Curran.
Ar the recent Church Synod in Dublin the question of marriage with a deceased wife's sister was raised on the following motion, which was moved by one of the clerical representatives: "That this Synod is of opinion that the table of kindred and affinity wherein whoso ever are related are forbidden in Scripture and our laws to marry together' should be amended in accordance with the provisions of the Deceased Wife's Sister Marriage Act 1907, and that upon this resolution & Bill may be introduced in the Synod of 1912." An amendment was moved that a committee should be appointed to consider the position of the Church in reference to marriage with a deceased wife's sister and to report to the next Synod. After an animated discussion this amendment was declared lost by a considerable majority. The following vote then was taken on the resolution itself: Ayes, forty-one clerical, fifty-one lay; noes, seventy-two. clerical, sixteen lay. It was declared that the motion was thrown out, because it had failed to get the necessary two-thirds majority of the clergy.
THE Attorney-General for Ireland was asked in Parliament last week if he could state why the registrars of Courty Courts in Ireland refused to register memoranda of agreements made under the Workmen's Compensation Act between employers and employed, and whether the Recorder of Belfast had upheld the registrar of his court recently in such refusal. The Attorney-General said that he was not aware that the registrars of County Courts refused to register such memoranda. He added that the rule regulating the matter was rule 4 of the rules dated the 1st June 1909, and that under it, in the Belfast case referred to, the Recorder of Belfast held that a mere verbal agreement could not be registered. Mr. Barry said that he understood that that decision was affirmed by the Irish Court of Appeal on the 24th April. The Attorney General is mistaken as to the effect of the Court of Appeal decision. The case in question is McGeown v. Workman, Clark, and Co. Limited (eee ante, p. 3). The Court of Appeal did not decide that an implied agreement could not be recorded, but held merely that the memorandum in question contained terms that could not be implied by the acts of the parties.
COMMENTS ON CASES.
IN the face of the natural reluctance which the learned judges of the Court of Appeal always evince to overrule authorities that have stood in the books unchallenged for many years, it was scarcely to be expected that they would come to any other conclusion than that at which they did in the recent case of Fauntleroy v. Beebe (noted ante, p. 8), however much it may be regretted that they could not see their way to do so. The important question there raised waswhether an order for the sale of certain real estate, which was made by the court in the year 1883 in a suit for the administration of the real and personal estate of a testator, operated as an absoluteconversion into personalty as from the date of the order of a portion of the property which remained unsold. Sufficient money having been raised for the purpose for which the order was made, it was not found necessary to sell the whole of the property. The question, therefore, was whether, although only converted notionally, the unsold portion was to be enjoyed in its notional condition. It appeared that one of the four children of the testator, who, under his will, was entitled to a share of his real and personal estate, having died intestate, the trustee in bankruptcy of the heir at-law of that child purported to convey all his estate and interest in her one-fourth share in the unsold real estate to a purchaser thereof. This transaction took place more than twenty years after the date of the order for sale of the real estate. On the authority of Lord Justice Farwell's statement in his judgment in the case of Burgess v. Booth (99 L. T. Rep. 677; (1908) 2 Ch. 648), Mr. Justice Warrington decided that the one-fourth share in question did not belong to the trustee in bankruptcy of the heir-at-law of the deceased child, the real estate of which that share formed part having to be regarded as being converted into personalty. Consequently, the purchaser's claim thereto failed, the trustee in bankruptcy having no title. Against this undoubtedly harsh result, based on the decisions in earlier cases, the purchaser appealed in the hopes that, even if the question were actually determined by the previous decisions, which it was argued was not the fact, the Court of Appeal might be induced to overrule them, as they were all pronounced by courts of first instance. The contention urged on behalf of the appellant was that the order must be treated merely as an order to raise sufficient money for the purpose for which it was made; that the order itself did not convert the property, but that a sale pursuant to the order only would; and that the court had no jurisdiction merely by an order to convert property and thus alter the rights of parties interested therein. Conceivably, if this point had been raised in its present form at a time when the court was unhampered by previous decisions, a contrary conclusion might have been arrived at. The gross injustice exposed would perhaps have led to a different doctrine being established. But confronted by the decision of Vice-Chancellor Hall 88 far back as in the year 1874 in Arnold v. Dixon (L. Rep 19 Eq. 113) and of Lord Justice (then Mr. Justice) Kay in the year 1884 in Hyett v. Mekin (50 L. T Rep 54; 25 Ch. Div. 735), it was too much to expect that any disturbance of the law would by attempted. In the former of those cases the court directed a sale of
real estate in an administration suit, but before it was effected one of the parties interested in the property died. The learned Vice-Chancellor held that the estate, was sufficiently converted by the mere order for sale, and that the share of the deceased beneficiary passed as personalty. In the latter, the decision in Arnold v. Dixon (ubi sup.) was acted upon, and it was held that an absolute order for sale of real estate in an administration suit operated as a conversion thereof from the date of the order and before any sale had taken place. That authority has been referred to with approval in several subsequent cases, notably by Lord Justice Farwell in Burgess v. Booth (ubi sup.). His Lordship there cited also as sound law the statement in Lewin on Trusts (11th edit., at p. 167). In none of the cases, however, did the circumstances in the least resemble those in the present case of Fauntleroy v. Beebe (ubi sup.). And it seems little short of preposterous that a purchasertwenty years after the making of an order for sale of real estate but partially carried into effect-should be bound by a hard-and-fast rule depriving him of property which he supposed he had bought under the impression that it was real estate. Having been converted by that order, although only notionally so, he loses his purchase mainly because the rule has been for a long period in existence. The warning conveyed by this decision is that it behoves purchasers to be on their guard, when buying real estate, to ascertain, by any means open to them, that the property has never been subjected to an order for sale.
Further considerations will be in Mr. Justice Warrington's list on Wednesday next, the 17th inst.
On Wednesday and Thursday of next week, Mr. Justice Neville will sit as an additional judge of the King's Bench Division and will hear non-jury actions.
In the Probate, Divorce, and Admiralty Court I: defended causes without furies will be proceeded with cn and after Monday next before Mr. Justice Horridge.
Mr. Justice Horridge having finished the business at Leeds, on the North-Eastern Circuit, last Monday returned to town and took his seat in court on the following day, proceeding with the common jury liat. He will now remain in London until the end of the present sittings.
Mr. Justice Channell and Mr. Justice Bucknil left London last Saturday for Nottingham, and proceeded with the trial of the election petition on the following Monday.
The judges (Mr. Justice Grantham and Mr. Justice Scrutton) have appointed the following commission days for holding the summer assizes on the North-Eastern Circuit-viz.: Newcastle, Monday, June 26; Durham, Monday, July 3; York, Tuesday, July 11, and Leeds, Monday, July 17.
Mr. Justice Lawrance has fixed the following commission days for the ensuing summer assizes on the Oxford Circuit, viz.: Reading, Wednesday, May 31; Oxford, Tuesday, June 6; Worcester, Friday, June 9; Gloucester, Thursday, June 15; Monmouth, Saturday, June 24; Hereford, Friday, June 30; Shrewsbury, Tuesday, July 4; Stafford, Monday, July 10; and Birmingham, Saturday, July 15. The dates fixed for Monmouth, Hereford, Shrewsbury, and Stafford are subject to alteration. Mr. Justice Lawrance will go the circuit alone until Stafford is reached, when he will be joined by another judge, possibly Mr. Justice Bucknill, and at the conclusion of the business at this town Mr. Justice Lawrance will return to London, where he will remain until the end of the present sittings. Mr. Justice Bucknill will continue the circuit, going on to Birmingham on Saturday, the 15th July, being joined by Mr. Justice Ridley, and will open the commission on the following Monday.
Mr. Justice Ridley, who will join Mr. Justice Pickford at Nottingham, on the Midland Circuit, on Wednesday, the 5th July, will at the conclusion of the business continue the circuit alone, going on to Warwick, and the commission day for this town has now been fixed for Monday, the 10th July.
Mr. Justice Bray, who will go the South Wales Circuit at the ensuing summer assizes in the place of Mr. Justice Bucknill, has fixed the following commission days-viz.: Haverfordwest, Thursday, May 25; Lampeter, Monday, May 29; Carmarthen, Wednesday, May 31; Brecon, Monday, June 5; and Presteign, Thursday, June 8. At the conclusion of the business at Presteign Mr. Justice Bray will return to London, afterwards going back for the second part of the circuit at Chester, where he will be joined by Mr. Justice Bankes. The commission day for this town has not yet been fixed.
The May Sessions at the Central Criminal Court will commence on Tuesday, the 23rd inst., at 10.30.
The May General Sessions were opened on Tuesday last, the 9th inst., at the Sessions-house, Newington, before Mr. Robert Wallace, K.C., chairman, Mr. Loveland Loveland, K.C., deputy chairman, and other justices. The calendar contains the names of 160 persons charged with offences, 113 having been committed from the north side and forty-seven from the south side of the Thames.
An intermediate session for cases arising in the county of Middlesex was opened on Saturday last at the Guildhall, Westminster, before Mr. Montagu Sharpe, chairman, Mr. Herbert Nield, deputy chairman, and other justices. The calendar contains the names of twenty-four 1ersons charged with offences. .
His Honour Judge Granger is acting as deputy at the Bloomsbury and Whitechapel County Courts for His Honour Judge Bacon, who for a few weeks is discharging the duties of judge in the Cornwall Circuit (No. 59),
Lord Haldane sat in the Judicial Committee of the Privy Council on the 4th inst. for the first time.
The annual dinner of the Union Society of London will be held at the Waldorf Hotel on the 17th inst., at 7.30.
The Hon. Sir John Downer, K.C., has arrived from South Australia.
Chief Justice P. M. C. Sheriff, of St. Lucia, has left the colony on three months' vacation leave, and the duties of his office have been, assumed by Mr. G. O'D. Walton.
Cambridge University proposes to confer the honorary degree of Doctor of Law upon Sir Horace Avory, judge of the King's Bench Division. His Lordship was a scholar of Corpus Christi College and took the LL.B. degree in 1874.
Mr. J. S. Risley, who has been appointed Legal Adviser to the Colonial Office, was born in 1867, and was educated at Marlborough and Magdalen College, Oxford. He has written law books, and has been legal assistant at the Colonial Office since 1901.
Mr. J. J. Nunan, Solicitor-General of British Guiana, is acting as Attorney-General and Mr. G.: J. de Freitas as Solicitor-General during the absence on leave of Sir T. Crossley Rayner, who has arrived in England.
The lecture on The Declaration of London" delivered before the Faculty of Laws by the Right Hon. Arthur Cohen, K.C., on the 4th inst. at University College will shortly be published by the University of London Press.
Mr. William Ward Duffield, solicitor, who has reached his ninetieth year, has resigned his office as registrar of the Chelmsford County Court. He was admitted in 1846, and had been registrar of the Chelmsford Court for twenty-eight years.
Speaking on Wednesday at the annual dinner of the Newspaper Society at Prince's Restaurant, Mr. Justice Scrutton referred to recent verdicts in libel actions, and said that, while newspapers must take their share of responsibility, the doctrine of fair comment ought to be one of the articles of the Magna Charta of newspapers.
Mr. George Gladstone MacTurk, of Ryeland Hill, South Cave, Hull, solicitor, late of the firm of Messrs. Burland and MacTurk, of South Cave, Hull, and Market Weighton, and formerly practising in Bradford, who died on the 23rd Feb., aged eighty years, left estate of the gross value of £51,336, with net personalty £11,315.
The annual meeting of Mrs. Meredith's Prison Mission was held on the 8th inst. at the Church House, Westminster, Mr. W. F. A. Archibald presiding. The annual report showed that seventy-seven women had been given employment during the year, considerably less than those admitted in the year before, owing to the lack of sufficient funds. The greater number came from Holloway Prison.
Mr. Hugh Bertram Cox, who has been appointed Legal Assistant Under-Secretary to the Colonial Office, was born in 1861, and was educated at Westminster and Christ Church. He was formerly junior counsel to the Treasury in peerage cases, and junior counsel to the Customs. Afterwards he was employed in the Venezuela Arbitration proceedings, on the British Commission for the New Hebrides Convention, and in other important duties. He has been legal assistant under-secretary at the Colonial Office since 1897.
At an inquest held at Kenilworth on Wednesday on Mr. James Arthur Berry, solicitor, of Southend, who was found dead on Monday afternoon with a bullet wound in his chest and a bottle of poison by his side, it was stated in evidence that Mr. Berry had written to his brother: "This will come as a great blow to you. I have become involved in great financial difficulties, and there is no loophole for me." A verdict of "Suicide during temporary insanity" was
The Inner Temple will give a Coronation concert in their hall on the evening of the 12th June; and at the Royal Horticultural Society's flower show in the gardens on the 23rd inst. they will entertain a number of well-known oversea visitors. Many visitors from the Dominions will also be invited to dine in hall during the Easter and Trinity Terms. The Middle Temple's arrangements have not yet been, announced; but the Honourable Society of Gray's-inn will hold a Bal Poudré in their hall on Tuesday, the 20th June. On a later date the Masters of the Bench will entertain about 2000 poor children of the neighbourhood in the gardens of the Inn.
The first chamber of the Civil Tribunal in Paris has an interesting case under consideration. It is a demande en annulation d'acte de légitimation by Miles. Emilie and Juliette Kuser, the former twentyseven years of age and the latter twenty-two. They are the natural daughters of a French lady who, in 1906, married a German Swiss named Kuser. The lady by her marriage legitimised her two daughters. The young ladies are dissatisfied with their status, not wishing to bear a German name, or to be considered the daughters of a foreigner, so they demand the rectification of their état civil, and the re-entry in the official registers of their original status-viz., that of filles naturelles. The cause has been "called," and their counsel, Maître Eric Bensard, stated that he would endeavour to establish that the mother did not know M. Kuser until 1898, and therefore he could not be the father of the ladies. The court has decided that the demanderesses shall prove by witnesses the circum-. stances indicated by their counsel.
The first number of the Land Union Journal has the following contents: The Broad Case against the Land Taxes, by Harold Cox; Undeveloped Land Duty, a Warning: Taxing Landlords out of Existence; Increment Value Duty on Sale of Land with Minerals ; Answers to Questions on the Finance Act; Some Important Amendments to the Finance Act which the Land Union Considers Essential; In the House of Commons, by C. Crofton Black; The Land Union General Meeting; Land Union Branch Secretaries in Conference; and "The Badge of the Tribe," by E. G. Pretyman, M.P. A supplement contains the Revenue Act 1911 and Reference Rules.
The Bristol City Council on Tuesday rejected by a large majority a resolution that the Government be asked to grant facilities for the passing of the Women's Enfranchisement Bill. At the Convocation of London University held on Tuesday under the chairmanship of Sir Edward Busk, Vice-Chancellor, the Rev. A. Caldecott moved a resolution expressing the opinion that the Parliamentary representation of the University would be incomplete so long as the women graduates of Convocation were debarred from exercising the University franchise, and requesting the chairman to introduce a deputation to the Prime Minister in order to lay before him the view of Convocation on the matter. In the course of prolonged discussion Dr. Heber Hart declared that it was not a good precedent for an academic body to discuss a purely political question. The resolution on being put to Convocation was carried by a large majority, only twenty-one voting against it. A division was demanded and taken with the following result: For the resolution, 247; against, twenty-eight.
At an inquest held at Holloway Prison on the 4th inst. on the body of an infant who died in the hospital for convicted prisoners in charge of the mother, Dr. Waldo, the City Coroner, said that in looking over ancient Coroners' Rolls recently in the Public Record Office and in the archives of the City Corporation he was particularly struck with the frequency of inquests on prisoners confined in prisons. For example, he found record of inquests held on eleven prisoners within a period of one year and four months between A.D. 1322 and 1323 who died in the prison-or dungeons-of the Castle of Northampton. The verdict of the jury in all these cases was to the effect that the deaths were from hunger, thirst, cold, and privation, and one of them from flux as well. The three city coroners of Northampton sat on one of these cases together, and the verdict of the jury was to the effect that death was due to "Natural causes from hunger, thirst, and cold, and not from the infliction of any other punishment." The coroner remarked that such a verdict was impossible nowadays, and, judging from inquests held by him, the treatment of prisoners in Holloway compared favourably with that meted out to those dying in workhouses and such institutions. Personally, he thought there might be a danger of making prison life a little too attractive.
To the many instances of brothers who have sat contemporaneously on the Judicial Bench, some of which have been recorded in the LAW TIMES, may be added the case of the brothers Wilde. Mr. Serjeant Wilde was successively Chief Justice of the Common Pleas, raised to the peerage as Baron Truro, and Lord Chancellor of England. His elder brother, Sir John Wilde, was Chief Justice of the Supreme Court of Cape Colony and ex-officio President of the Legislative Council or Second Chamber of that colony. The Wildes supply a unique instance of two brothers presiding simultaneously as Speakers of two Upper Chambers of Legislature-Lord Truro as Chancellor and ex-officio Speaker of the House of Lords and Sir James Wilde as Chief Justice of Cape Colony and ex-officio President of the Upper House in that colony. There are, moreover, very numerous instances of brothers being members simultaneously of the judicial and episcopal benches. Lord Chancellor Eldon, who was the son of a bishop, was a brother of two bishops-the one a bishop of the Irish see of Elphin, and the other a bishop of Bath and Wells. Lord Chancellor Thurlow was the brother of a bishop of Durham on whose issue the Thurlow peerage was entailed in special remainder. In Ireland the Hon. Francis FitzGerald was a Baron of the Court of Exehequer from 1859 till 1882, while his brother, the Right Hon. William FitzGerald, was for almost the same period a member of the episcopal bench as bishop first of Cork and subsequently of Killaloe.
The Treasurer (Sir H. A. Giffard, K.C.) and the Masters of the Bench of Lincoln's-inn entertained the following 'guests at dinner on Wednesday, it being the Grand Day in Easter Term: Lord Robson, Lieutenant-Colonel Sir Newton Moore (Premier of Western Australia), Sir Edward Troup, the Hon. Sir Francis Maclean, Sir Theodore Morison, the Attorney-General, Sir Squire Bancroft, Sir W. Lucius Selfe, Vice-Admiral Randolph Foote, C.M.G., the Provost of Oriel College (Dr. Shad well), the President of the Royal College of Surgeons (Mr. H. J. Butlin), the President of the Institution of Civil Engineers (Mr. Alexander Siemens), the President of the Society of Antiquaries (Dr. C. H. Read), Major-General Michael H. Saward, R A., Lieutenant-Colonel Charles P. Martel, R.A., Mr. Sidney Hastings, and Mr. Arthur Hill Trevor. The Benchers present were Mr. Graham Hastings, K.C., Sir Andrew Scoble, Mr. Justice Compton Lawrance, Mr. Horton-Smith, K.C., Lord Macnaghten, the Master of the Rolls, Lord Justice Vaughan Williams, Mr. Justice Joyce, Mr. Douglas Walker, K.C., Lord Courtney of Penwith, Lord Justice Buckley. Mr. Beale, K.C., M.P., Viscount Haldane, Sir Charles Chadwyck-Healey, K.C., Mr. Levett, K C., Lord Rathmore, Mr. Alexander, K.C., Mr. Methold, Mr. Justice Eve, Mr Lawrence, K.C., Mr. Kirby, Mr. John Cutler, K.C., Mr. Jenkins. K.C., Mr. Hughes, K.C., Mr. Rowden, K.C., Sir Frederick Pollock, Mr. Younger, K.C., Mr. Gregory, Mr. Carson. K.C., Mr. Sargant, Mr. Wood Mr. Boxall, K.C., Mr. Romer, K.C., Mr. Dixon, Mr. Peterson, K.C., ard Canon Beeching (Preacher)
Bankers in this country-and, in fact, in all countries-are required to be acquainted with the signatures of their clients, but a recent decision in France makes it incumbent upon them to be cognisant of the state of their depositors' health, at least as far as their mental capacity is concerned. This is in effect what the Neuvième Chambre de la Cour in Paris has decided in the following circumstances: In May 1907 a country agent of a Paris banker instructed his principals to undertake the business of M. Cailleur, a doctor of Amiens. The nature of the business was speculation on the Bourse, and, in view of these operations, the agent (remisier) sent on to the banker eighteen communal bonds as couverture, the total value of the securities being 8100 francs (£324). In due course the banker received orders signed in the name of the doctor to pay certain amounts, and these mandates were honoured. At the end of three months not only had the 8100 francs been exhausted, but there was an adverse balance against Dr. Cailleur of 300 francs (£12). The banker wrote requiring further couverture. In reply he received a letter from the doctor's wife, in which she stated that her husband had been insane (fou) for several months, that she had been speculating on her own account without any autorisation maritale, so she claimed the restoration of the 8100 francs and repudiated the claim of 300 francs made by the banker. Her next step was to obtain an interdict against her husband from managing his affairs, and then she sued the banker. The court has ordered the restitution of the 8100 francs of couverture, and non-suited the banker in regard to his counter-claim for 300 francs. The report from which we have taken the foregoing concludes: "Attendu, dit l'arrêt, qu'il doit s'imputer à faute de ne pas avoir fait vérifier l'identité de M. Cailleur, dont l'état de santé était notoire à Amiens."
The President Mr. H. J. Johnson), the Vice-President (Mr. W. J. Humfrys), and the Council of the Law Society entertained a large company at dinner at the Hall of the Society on the 4th inst. The following guests were present: The Lord Chancellor, Lord Macnaghten. Lord Justice Vaughan Williams, Mr. Justice Bray, Mr. Justice Parker, Lord Robert Cecil, K.C., Sir Marcus Samuel, Sir Ray Lankester, Sir Frank Crisp, Sir H. C. Eggar, Sir Henry Giffard, K.C., S.r R. Ellis Cunliffe. Mr. W. Phipson Beale, K.C., M.P., Mr. H. D. Greene, K.C., Mr. R. B. D. Acland, K.C, Mr. H. A. Rigg, K.C., Mr. L. Batten, K.C., Mr. Albert Gray, K.C., Mr. J. R. Atkin, KC., Mr. R. A. Gillespie, Mr. J. Dickinson, Mr. C. J. Stewart, Mr. C. H. L. Neish, Mr. W. H. Gray, Mr. W. R. Wallace, Mr. P. M. Beachcroft, Mr. R. Todhunter. Mr. E. G. Thorne, Mr. E. F. Turner, Mr. R. H. Humphreys, Mr. E. B. Hawksley, Mr. Peregrine Francie, Mr. Ernest Humbert, Mr. H. Weller Richards, Mr. G. Lacy Addison, Mr. B. W. Simpson, Mr. H. G. Lousada, Mr. H. B. Rendall, Mr. F. S. Collins, Mr. T. J. Pitfield, Mr. A. S. Jecks, Mr. Harmer Steele, Mr. H. C. Masterman, Mr. M. Templeton, Mr. A. W. Weldon, Mr. E. F. Henley, Mr. W. Holmes, Mr. J. H. DavidBOD, Mr. C. R. I. Nicholl, Mr. F. B. H. Margette, Mr. Cumberland Lowndes, Mr. T. B. Lodge, Mr. Lovel Smeathman, Mr. C. Walton Sawbridge, Mr. J. A. Hamnett, Mr. Leslie Hunter, Mr. H. E. Johnson, Mr. J. C. Holmes, Mr. J. H. Wilson, Dr. A. E. Cowley, Mr. A Andrewes Uthwatt, Mr. A. C. Macintosh, Mr. B. A. Shires, Mr. G. A. Solly, Mr. G. A. Charlesworth, Mr. H. Plewe, Mr. S. Bromley Garrard, Mr. Alexander Siemene, Mr. E. B. Ellington, Mr. M. J. B. Tomlin, Mr. M. L. Gwyer, Mr. Andrew Bennie, Mr. H. L. Hopkinson, Mr. C. Murray Smith, Mr. P. M. Johnson, Mr. B. H. Johnson, Mr. Sinclair, Mr. W. W. Bury, Mr. Richard F. Austin, Mr. Henry Temperley, Mr. H. M. W. Baynes, with Mr. S. P. B. Bucknil (secretary) and Mr. E. R. Cook (assistant secretary). The following members of the council were also present: Mr. J. W. Budd, Mr. R. Ellett, Mr. C. B. Margetts, Sir Albert Rollit, Mr. T. Rawle, Mr. W. H. Winterbotham, Mr. J. F. Milne, Mr. C. L. Samson, Mr. W. Trower, Mr. C. E. Longmore, Mr. T. Eggar Mr. T. W. Bischoff, Mr. S. Garrett, Mr. R. A. Pinsent, Mr. C. H Morton, Mr. W. H. Norton, Mr. J. J. D. Botterell, Mr. A. H. Coley, Mr. R. S. Cleaver, Mr. C. Goddard, Mr. R. W. Dibdin, Sir Homewood Crawford, Mr. R. C. Nesbitt, Mr. A. J. Clarke, Mr. C. A. Coward, Mr. W. Dawes, the Hon. R. H. Lyttelton, Mr. R. M. Welsford, Mr. W. H Foster, and Mr. A. M. Jackson.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS,
HOUSE OF LORDS.
Employer and Workman-Death by Accident "arising out of ment-Disappearance of Sailor from Ship at Sea-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58).—An officer of a ship, who was on duty on deck, disappeared from the ship, in broad daylight in fine, calm weather. No one saw what happened to him, but there was evidence that not long before he had complained of feeling sick and giddy. Held, that there was evidence from which the court might infer that he fell overboard from an accident arising not only" in the course of" but "out of" his employment, within the meaning of the Workmen's Compensation Act 1906, and that his dependants were entitled to compensation under the Act. Judgment of the Court of Appeal (102 L. T. Rep. 270) affirmed. [Owners of the Swansea Vale v. Price. H. of L. May 5.-Counse!: Atkin, K.C. and L. M. Richards; D Villiers Meager and R. C. Ollivant. Solicitors: Botterell and Roche, for William Cox, Swansea; John T. Lewis, for Llewelyn Howell and Willism, Swanɛea }
Sale of Goods-Sale by Description-Delivery of Goods of a different Kind-Claim by Buyer for Damages-Clause in Contract excluding Warranty-Liability of Seller.-The respondents, who were seed merchants, sold to the appellants by sample a quantity of seed as "common English sainfoin." The contract was made subject to the condition Sellers give no warranty express or implied as to growth, description, or any other matters, and they shall not be held to guarantee or warrant the fitness for any particular purpose of any seed sold by them.' The seed was in fact giant sainfoin " seed, which is of inferior quality to "common English sainfoin," but the two seeds are practically indistinguishable. The appellants resold the seed to several persons, and when the crop came up the inferior quality was discovered, and they had to pay damages to the purchasers. Held, that the respondents were not protected by the clause in the contract, and that the appellants could recover damages from them for breach of warranty. Judgment of the Court of Appeal (103 L. T. Rep. 118; (1910) 2 K. B. 1003) reversed.
[Wallis and others v. Pratt and another. H. of L. May 5Counsel: M. Shearman, K.C. and C. Herbert Smith; Atkin, K.C. and Cecil Walsh. Solicitors: Rooke and Sons, for Brain and Brain, Reading; Andrew Walsh, Gray, and Rose.]
COURT OF APPEAL
Landlord and Tenant-Lease-Covenant not to underlet without Con sent -Conditions of Consent -" Fine or Sum of Money in the Nature of a Fine"-Void Condition-Lease executed before Commencement of Statute-Retrospective Enactment-Conveyancing and Law of Property Act 1892 (55 & 56 Vict. c. 13), s. 3.-A lease was granted in 1874 which contained a covenant by the lessees that they would not, without the consent in writing of the lessor, assign, underlet, or part with the possession of the demised premises. In 1892 it was enacted by sect. 3 of the Conveyancing and Law of Property Act of that year that in all leases containing such a covenant the covenant should, in the absence of expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine, or sum of money in the nature of a fine, should be payable for or in respect of the lessor's licence or consent. In 1909, the lessees being desirous of granting an underlease, the lessor stipulated, as a condition of his consent, that half the surplus rental to be obtained by the lessees over and above their own rental should be paid to himself. In a consequent action by the lessees against the lessor for a declaration that the lessor was not entitled to impose that condition, it was decided by Joyce, J. (104 L. T. Rep. 277) that sect. 3 of the Conveyancing and Law of Property Act 1892, prohibiting, in the absence of express agreement in the lease, the exaction of a fine in respect of a licence to assign or underlet, was intended to apply as well to leases executed before the commencement of the Act as to those executed after; and that therefore the lessor was not entitled to impose the condition in question. The lessor appealed. Held, that the lessees were entitled to the declaration claimed by them, the lessor having no right to impose the condition, having regard to the provisions of sect. 3 of the Act of 1892. Appeal dismissed.
[West v. Gwynne. Ct. of App. : Cozens-Hardy, M.R., Buckley and Kennedy, L.JJ. May 2, 3, and 10.-Counsel: for the appellant, · Hughes, K.C. and R. E. Moore; for the respondents, Younger, K.C. and Ward Coldridge. Solicitors: for the appellant, Johnstone and Wiley; for the respondents, Reed and Reed.] Moneylender Transaction purporting to be out-and out Transfer of Property "Advance and Repayment of Money' 'Security for Money"-Security taken otherwise than in registered Name of Moneylender-Moneylenders Act 1900 (63 & 64 Vict. c 51), 88. 2, sub-8. 1 (c), 6. By deed dated in Sept. 1905, E. R., in consideration of the sum of £400 paid to him by a moneylender of the name of L. N. L, but who carried on business under the registered name of "R. L.' transferred to the moneylender £800, part of his share in the residuary estate of his deceased father to which he was entitled under his father's will. The deed purported to be an out-and-out transfer of the £800 to the moneylender in his personal name, and contained no covenant by E. R. to pay the £800 or any sum of money or interest, but the same was to be payable out of the trust funds. It was certified by the master, on the evidence before him, that the deed, notwithstanding the form thereof, was a "security for money,' within the meaning of sect. 21, subsect. 1 (c), of the Moneylenders Act 1900, and that it was void because the moneylender had not taken it in his registered name of "R. L." A summons was taken out by the moneylender to vary the master's certificate and to obtain a declaration that the deed was valid. In support of the summons it was contended that the deed was not a moneylending transaction at all, but was an outand out transfer of £800 for £400, and therefore was properly taken by the moneylender in his personal name instead of in his registered name, and was not within the mischief of the Act of 1900. Sect. 1 of that Aot provides for the reopening by the court of transactions of moneylenders, and enacts, by sub-sect. 4, that "the foregoing provisions of this section shall apply to any transaction which, whatever its form may be, is substantially one of money lending by a moneylender." Sect. 2, subsect. 1 (c), enacts that a moneylender "shall not enter into any agreement in the course of his business as a moneylender with respect to the advance and repayment of money, or take any security for money in the course of his business as a moneylender, otherwise than in his registered name." Sect. 6 enacts that the expression “moneylender ehall include " every person whose business is that of moneylending, or who advertises or announces
himself or holds himself out in any way as carrying on that business." It was decided by Neville, J. that as the deed was taken by L N. L. "in the course of his business as a moneylender " in his personal name and "otherwise than in his registered name of "R. L." it was void. The moneylender appealed. Held, that the decision of Neville, J. was perfectly right; and that the transaction came within sect. 2, sub-sect. 1 (c), of the Act of 1900, being a security for money, and was not an Ordinary purchase transaction. Appeal dismissed.
[Re Robinson; Clarkson v. Robinson (No. 2). Ct. of App.: Cozens-Hardy, M.R.. Buckley and Kennedy, L.JJ. May 9.Counsel for the appellant, J. B. Matthews; for the respondents, R. F. MacSwinney; H. Stuart Sankey. Solicitors for the appellant, Barnett; for the respondents, Capron and Co.; Lidiard, Son, and Baker.]
Partnership-Covenant-Charge on Partner's Share "Gains and Profits "-Construction—Dissolution by Death-Principles on which Accounts ought to be taken-Practice of Partners-Partnership Act 1890 (53 & 54 Vict. c. 39), ss. 31, 44.-J. G., one of three partners in a colliery, charged his one-third share and the future gains and profits in the partnership, which was dissolved by his death on the 20th April 1909, with the payment of £10,000 and interest to trustees of a deed for the benefit of his wife and family, and also covenanted to pay to the trustees all the balance of residue remaining of his share in the gains and profits of the business, such excess and the interest on the £10,000 to be divided as to two-thirde for his wife and one-third for himself. Held, that as between them and J. G.'s estate the trustees under the covenant were not entitled to have paid to them out of his share of the partnership assets surplus income which, although appearing in the partners accounts as excess of receipts over expenditure during a particular year, was, by the settled practice of the partners, treated otherwise than as distributable profits and devoted to colliery equipment and replacing assets that had been worn out. Held, further, that from the taking of the last annual account previous to dissolution there must, in the absence of evidence of the amount appropriated to depreciation year by year, be an inquiry as to the amount to be so appropriated since the last account, the proper amount being ascertained by valuers appointed by the parties or the court. Decision of Eve, J. (130 L. T. Jour. 483; 104 L. T. Rep. 341) affirmed.
[Garwood v. Garwood. Ct. of App: Cozens-Hardy, MR, Buckley and Kennedy, L JJ. May 6.-Counsel: P. O. Lawrence, K.C. and Earle; Clayton, K.C. and Sheldon; Jessel, K.C. and Borthwick. Solicitors: Booth and Smee; Withers, Pollock, and Crow; Newman, Paynter, and Co., agents tor Forster and Paynter, Alnwick.] Vendor and Purchaser-Restrictive Covenant by Vendor-Equitable negative Easement—Surrender of Lease by Vendor-Grant of new Lease -Liability of Lessee on Covenant.-Appeal by the defendant G. S. from a judgment of Scrutton, J. in an action tried by him without a jury (reported 104 L. T. Rep. 140). The action was brought by the plaintiff against I. S. and G. S. (the son of the defendant I. S.). On the writ the plaintiff claimed (1) damages for breaches of covenants contained in an assignment, dated the 31st Aug. 1908, made between the def.ndant I. S. (the father) and the plaintiff; and (2) an injunction to restrain the defendants from selling or dealing in beef, mutton, &c., at or upon the premises, 137, H.-street, East Ham, or in connection with the business of a pork butcher carried on there. The questions of law related to the equitable doctrine of negative easements and restrictive covenants. The facts found by the judge were as follows: Before Aug. 1908 the defendant I. S. (the father) was in occupation of 137, H.-street, under a lease for a term of twenty-one years from the 29th Sept. 1903, with a covenant that he would not carry on therein any noisy or offensive trade other than that of a pork butcher. He was also in occupation of 170, H-street, in which he carried on the trade of a general butcher. The plaintiff, who had been apprenticed with I. S., the father, on the 31st Aug. 1908 bought for the sum of £450 the leasehold interest in 170, H.-street, and the interest and goodwill of a butcher therein carried on; and the defendant I. S. (the father) covenanted with the plaintiff that he would use his best endeavours to promote the trade or business and to secure to the plaintiff the full advantage of the connection and custom of the defendant in the business, and also that he (the defendant) would not at any time, either directly or indirectly, carry on or assist any other person to carry on or obtain any interest in the trade or business of a butcher within three miles of 170, H.-street. In 1909 I. S. (the father) thought of giving up the business at No. 137, and the other defendant, hearing that his father proposed to give up the pork butcher's business at No. 137, wished to carry it on. He had known during the early part of 1909 of the restrictive covenant under which his father had placed his business at No. 137. The father went to the landlord and offered to surrender the lease of No. 137, and the landlord said he would require a new lessee to be found.. The father said his son would take a new lease; and a new lease was submitted to the son for a longer term, but otherwise in the same terms as the surrendered lease, the son striking out the word "pork" in the restrictive covenant, leaving himself free, so far as the landlord was concerned, to carry on the trade of a general butcher, and the landlord accepted the alteration. The father closed the shop for three or four days, and it was then opened by the son as a general butcher's shop The plaintiff, who had paid in 1908 £150 for the father's general butcher's business at No. 17