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Vol. CXXXI.-No, 3567.


SUPREME COURT OF JUDICATURE COURT OF APPEAL. NASH . LAYTON.-Practice-Interrogatories-Moneylender-Charge on property to secure loan-Action to enforce-Interrogatories as to whether plaintiff was carrying on business of moneylender 834 Re LACON'S SETTLEMENT: LACON v. LACON.-Settled land-Capital or income-Mansion-house-Lease by

tenant for life-Dilapidations
Damages for breach of covenant to


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Re RAMEL SYNDICATE LIMITED.Company Winding-up - Articles of association Meaning or surplus assets"

GREAT CENTRAL RAILWAY COMPANY v. MIDLAND RAILWAY COMPANY.Railway companies powers over another's line




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KING'S BENCH DIVISION RAULIN. FISCHER.-Foreign judginent Prosecution for criminal offence Intervention by person injured by criminal act......... ATTORNEY-GENERAL v. REYNOLDS.Common-Rights of-Turbary and estovers Ancient messuage Pulling down-New house-Continuance of old rights..................... 852

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TO READERS AND CORRESPONDENTS... 335 LEADING ARTICLES.-Topics of the Week-Noteworthy Decisions of the Judicial Year ........................... 335

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THE GAZETTES................................. 351

The Law and the Lawyers.

MR. JUSTICE HORRIDGE is acting as Vacation judge for the first part of the Long Vacation. Last week there were no attendances in court, but on Tuesday last the learned judge had a formidable list of summonses to dispose of-thirtytwo attended by counsel and four not attended by counsel. It seems a pity that so much work should be crowded into one day, when probably one-half of it might have been disposed of if there had been a sitting in chambers last week. From many points of view, which it is not necessary to specify more particularly, it is not in the interests of the administration of justice nor in the interests of the parties concerned that such a congestion should be allowed in the hottest part of a particularly hot year.

THE sitting in court on Wednesday last was not a protracted one, the learned judge clearing off his list shortly after one o'clock. In addition to three cases in chambers there were twenty-five cases to dispose of. None of these were of the least interest, either from a general or from a legal point of view. Following on the lines adopted by the Vacation judges of the last few years, Mr. Justice HORRIDGE has made it clear that he will not deal with any matters which cannot be said to fall strictly within "Vacation Business." He added a warning, of which, no doubt, the Profession will take careful notice, that if cases are set down which ought not to be placed in the list, such cases may be dismissed with the penalty of the payment of costs attached.

IT was laid down in Lockwood v. Cooper (89 L. T. Rep. 306; 20 Cox C. C. 539) that to constitute gaming within the Second Sheet.

Licensing Act 1872 the game must be one in which the players stake money or money's worth, and not merely one in which the only money or money's worth involved consists of prizes given by persons who are not players in the game. That was a case of a whist drive, and the application of that decision was considered by His Honour Judge BRAY in an action brought to recover a sum of money, being the prize won by the plaintiff at a whist drive promoted by the defendants. In that case the players contributed to the prizes, and the defendants relied upon the Gaming Acts, the learned judge holding that those statutes constituted an answer to the claim. The point is an interesting one, but it would seem that the decision is correct, having regard to the fact that whist cannot be considered as a game of skill, and the learned judge was of opinion that it did not come within the saving words at the end of sect. 18 of the Gaming Act 1845, which provides that the statute shall not apply to "any subscription or contribution or agreement to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise."


WE publish this week two interesting documents. first of these contains details of the instructions given to valuers under the Finance (1909-10) Act 1910 by the Inland Revenue Department with reference to the ascertainment of site value on "occasions" under that Act. The other is a circular emanating from the Home Office as to costs and proceedings under the Indictable Offences Act 1848 as affected by the Costs in Criminal Cases Act 1908. Apparently the matter has been raised by the Director of Public Prosecutions and other private prosecutors, owing to the reluctance of certain benches of magistrates in issuing a certificate for costs. It is now pointed out, and we think rightly so, that when the magistrates are satisfied that the employment of a solicitor has resulted in a difficult or complicated case being put before them in a manner which has assisted them to come to a decision, or that it would not have been right to permit or expect the police or a private prosecutor to present the case unassisted, it is their duty to issue a certificate in pursuance of sects. 1 and 3 of the Cost in Criminal Cases Act 1908.

THE report for last year issued by the Board of Agriculture under the Tithe, Copyhold, Inclosure, Commons, and other Acts shows that the total amount of tithe rentcharge charged on the land of England and Wales at the commutation in 1836 was £4,054,406, but by merger or redemption this has now been reduced to £3,704,056. The actual sum payable to the tithe owners, being dependent on the average price of corn, was in 1910 £2,609,764. The number of orders for redemption made by the board during last year was 498, being twenty-eight more than in 1909, and, of these, 312 were voluntary.

THE total number of manors affected by the enfranchisement of lands under the Copyhold Acts, with the sanction of the board or their predecessors, has reached 2571, the number of transactions involved being 22,261. The gross sum paid for enfranchisement has been £2,721,020, while, in addition, rentcharges amounting to £21,023 have been created, and 1388 acres have been assigned to the lords for compensation. During 1910, 226 applications were received and 205 enfranchisements were completed, and, of these, fifty-two were voluntary and 153 compulsory. With regard to recreation grounds set out under the Inclosure Acts from 1845 to 1910, the number was 350, and only twenty-nine are still vested in the churchwardens and overseers, the remainder having been transferred to the charge of the local authorities.

OWING to the cases of Caterham Urban District Council v. Godstone Rural District Council (90 L. T. Rep. 653; (1904) A. C. 171) and West Hartlepool Corporation v. Durham County Council (97 L. T. Rep. 114; (1907) A. C. 246), considerable difficulties have been created with regard to the questions of adjustment which may arise on the alteration or creation of local government areas, and therefore a Joint Select Committee of both Houses was appointed to inquire into the application of the provisions contained in the Local Government Acts 1888 and 1894 and the Scottish statutes of 1889 and 1894 relating to financial adjustments consequent on the alteration of the boundaries of a local government area, or on an alteration in the constitution or status of the governing body of such area. The report of that committee. has now been issued, which we shall publish next week, and it is recommended that the statutes in question shall be amended in accordance with the conclusions arrived at, which undoubtedly will effectively remove many of the difficulties which at present attend the alteration of the boundaries of a local government area.

NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR. THE following review is intended to aid the busy legal practitioner who desires to take advantage of the greater leisure afforded by the Long Vacation in noting up his text-books or reports, or in refreshing his memory as to the trend of judicial opinion during another year upon those special subjects which are in his practice chiefly to be borne in mind. It is obviously impossible to touch upon every case within any reasonable limit of space. As in previous years, we therefore devote this review to such decisions as seem to be of practical importance in ordinary day-to-day legal work, and to facilitate reference we have chosen the most obvious of the possible catch-words descriptive of the scope of the cases touched upon, and have arranged them in an alphabetical order. It only remains to be said by way of preliminary that this review covers the period from the sitting of the courts in Oct. 1910 down to their rising for the Long Vacation in 1911. ADMINISTRATION is the first subject demanding attention. Fauntleroy v. Beebe (104 L. T. Rep. 704; (1911) W. N. 110) is a very practical little point, for in it was raised anew a question upon which there has been some hesitation. Mr. Justice Warrington has held, and the Court of Appeal has affirmed the view, that an order for sale operates as an immediate conversion of realty into personalty as from the order's date. There is already some authority for this, but of late it has been regarded as doubtful, and it is now satisfactory to have so important a point settled. The notorious Crippen case has led to the decision of a point on administration law. In Re Estate of Crippen (104 L. T. Rep. 224; (1911) P. 108) the murderer was convicted on the 22nd Oct. 1910. His appeal was dismissed on the 5th Nov., and on the 8th Nov. following he executed a will appointing Le Neve executrix and legatee. His murdered wife's next of kin included H., and her attorney moved for a grant of letters of administration in respect of the estate of the wife, who had died intestate. The conviction of Crippen was held "a special circumstance" within sect. 73 of the Court of Probate Act 1857, and the legal personal representative of the husband was passed over, and the applicant as attorney was appointed administrator of the wife's estate. Wilson v. Wilson (104 L. T. Rep. 96; (1911) 1 K. B. 327) raises a totally different class of case. An administrator was an undischarged bankrupt, and the question was whether he was able to retain a debt due to him from the deceased intestate out of the assets acquired by him qua administrator. Mr. Justice Channell thought the real point was, What was the effect of the bankruptcy? The learned judge thought that the beneficial right to the debt was in his trustee in bankruptcy, and that the latter was the proper person to sue for it, and on this ground the basis of the right of retainer (viz., that an administrator cannot sue himself) It was held, therefore, that such an administrator has no right to retain. Turner v. Turner (1911) 1 Ch. 716) was determined by the Court of Appeal. The facts are somewhat complex and curious, and it may be said that they involved questions of partnership, the construction of an obscure codicil, and some points on the law relating to executors. The principle of the decision may, however, be narrowed down to this, in the phraseology of Lord Justice Fletcher Moulton, that there is no power in an executor to retain a legacy to one partner of a firm in virtue of a partnership debt to the estate. There was raised in argument the principle that a legacy is not to be paid except out of the debt which is owing by the legatee to the testator, The Court of Appeal was prepared to accept this, but would not go so far as to hold that the doctrine applied when the debtors were a firm, when the debt was joint, and the legacies are given to individual partners; and in such a case the principle fails to attach. AFTER-ACQUIRED PROPERTY has given cause for two or three rather important decisions. Thus Re Mackenzie; Mackenzie v.

was gone.

Edwards-Moss (1911) 1 Ch. 578) touched upon this branch of law amongst other points considered. A domiciled Scot had married a domiciled Englishwoman, and a settlement in Scottish form had been made by the husband, and a contemporaneous English settlement by the wife's father. The "after acquired property 33 clause gave the income of life interests (included amongst such property) to the wife for her separate use without power of anticipation. They could only be sold with the wife's consent, and they were excluded from the trust for conversion. The marriage was an unhappy one, and the wife had to leave her husband under circumstances which would have entitled her to a decree of judicial separation. On her death the husband and child claimed that she was domiciled in Scotland, and that each of the plaintiffs were entitled to one-third, or alternatively that one or the other was entitled to one moiety, of her free movable estate after payment of testamentary expenses and debts, notwithstanding provisions in her will purporting to dispose of all her property. The defendants denied the Scottish domicil, and further argued that, even if there were such, the plaintiffs were not entitled either to jus relicti or legitim out of the estate. Mr. Justice Swinfen Eady was satisfied that the parties to the English settlement intended that English law should govern it, and he held that the wife could dispose by will of the savings of income of separate property, and that the after-acquired life interests were caught by the settlement, notwithstanding the restraint on anticipation imposed by the donors. Another case on the same subject, but dealing with a different aspect of it, may be cited in Re Williams' Settlement; Williams v. Williams (104 L. T. Rep. 310; (1911) 1 Ch. 441). Here a wife took out a summons against her husband and the trustees of their marriage settlement to settle certain questions, amongst which was one whether funds to which she became entitled on the death of F. were caught by an after-acquired property clause. The plaintiff was before her marriage absolutely entitled to one-third of her parents' marriage settlement funds, and contingently entitled to a further one-third share upon the death of F. under twenty-one. The plaintiff in her own settlement covenanted that, if she should become entitled in any manner and for any estate or interest" to any property exceeding in value £500 at one time and from one source,' the same would be settled. F. dying under twenty-one, it was argued that the phrase already set out could not extend to an already contingent interest which subsequently fell into possession, but that the covenant only applies to property acquired in title in futuro. Mr. Justice Eve held that the contingent interests in F.'s share were within the mesh of the after-acquired property clause, and for so holding relied on an old authority-viz., Archer v. Kelly (1 Dr. & S. 300).

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The question whether ANNUITIES are charged on income or on the principal is one of perennial difficulty, and in all such doubts the new decision in Re Watkins' Settlement: Wills v. Spence (103 L. T. Rep. 749; (1911) 1 Ch. 1), arrived at by the Court of Appeal will be certainly cited as authority. A marriage settlement had conveyed certain property to trustees upon trust, after the husband's death, to pay out of the income "the clear yearly sum of £400 per annum to the wife, and "subject thereto the trustees were directed, if there should be any children, upon certain trusts, and, if there should be no children, then after paying the annuity, and 'subject thereto," in trust for W. The income of the property was insufficient to pay the £400 in full, and the summons raised the question whether the annuity was not, on the true construction of the settlement, a mere continuing charge on the income, but was a charge on the corpus. Mr. Justice Swinfen Eady thought it was not a charge on the corpus, but the Court of Appeal thought that this decision was wrong, and based their view on the words "subject thereto." This meant subject to the annuity, not in a referential sense, but in a sense importing a full and complete payment, and thus there is brought about a charge on the corpus. This reading was reinforced, in the opinion of the Court of Appeal, by a power of sale in a later portion of the instrument. This case is rather important, for there will be found some authority only four years old where the same words, "subject thereto,' were given a different construction.

We now pass to BANKRUPTCY, obviously one of the most important as it is one of the most prolific subjects for judicial consideration. Re Darby; Ex parte Brougham (1911) 1 K. B. 95) tells the old tale of fraud in company-mongering. A certain company was registered in Guernsey, and consisted only of its seven signatories, D. and G. being two of them. They formed it to hide their identity, and they were its sole managers and directors. The company contracted to buy a licence to work a quarry and promoted a company to acquire it, and contracts were entered into between the two companies. The latter company was formed by D. and G., and all its signatories were their creatures. Then were issued prospectuses inviting public subscription, and D. and G. secured the spoil. These documents did not disclose the fact that D. and G. were promoters and vendors. and were receiving profits. In due course the company liquidated, and D. and G. were bankrupt. The former had some assets, the latter had nil. They were subsequently prosecuted and convicted for fraud. The liquidator of the company lodged a proof against D.'s estate for damages for breach of trust as promoter, or, alternatively, for money had and received in respect of undisclosed profits. The trustee in bankruptcy rejected the proof on the ground that the debtor was not a promoter, and that the claim was not provable. Mr. Justice Phillimore thought the case rather a fine one and

introducing somewhat novel points, but on the whole came to the conclusion that the Guernsey company was a mere alias for D. and G., and that the company through its liquidator could prove in the bankruptcy for the whole of the secret cash profit received by D. and G. Re Anderson (104 L. T. Rep. 221; (1911) 1 K. B. 896) raises another question of great importance in practice. It settles on the authority of Mr. Justice Phillimore that where a debtor is adjudicated bankrupt in New Zealand, having an English domicil and entitled to a reversionary interest in English personalty, such interest, although overlooked in the colonial bankruptcy, belongs to the colonial official assignee, although its existence was discovered in an English bankruptcy at a date subsequent to the bankruptcy in New Zealand. The notice was given of title directly the English trustee in bankruptcy obtained disclosure of the existence of the property. It was further held that the court fastens on the laches of a first incumbrancer, and says that, not having given notice, he is, pro tanto at any rate, postponed to the man who has been deceived by the fact that he has not given notice. This reason does not exist when there are dealings with statutory assignees, such as trustees and assignees in bankruptcy, who get only that which the bankrupt has to give them. So the perfection of title


by the English trustee in this case by notice did not give him priority over the colonial trustee. Another case turning on notice may be mentioned in Re A Debtor, No. 305 of 1911 (noted ante, p. 147; (1911) W. N. 135). The question was one of disputed validity. The debtor and the petitioning creditors, K., A., and C., were members of the Stock Exchange. They obtained final judg ment against the debtor for £780, and shortly afterwards dissolved partnership. The solicitors of the firm lately broken up issued a notice calling on the debtor to pay sums due to the creditors or their solicitor. This was relied on as a good bankruptcy notice. It concluded with a sentence alleging that the solicitors were authorised to receive payment and to act for K., A., and C. The debtor resisted the petition, arguing that the notice did not direct payment in accordance with the terms of the judgment. The Court of Appeal took this view, having consulted Lord Justice Vaughan Williams, who had no recollection of having sanctioned any such direction, and who had an impression that it was unauthorised. Under these circumstances the Court of Appeal thought that a bankruptcy notice directing payment either to the creditors or to their solicitor was not a notice requiring payment of a judgment debt in accordance with the terms of the judgment, as provided by the Bankruptcy Act 1883, s. 4 (g). Another case on the validity of the bankruptcy notice may be usefully recalled in that arrived at by the Court of Appeal in Re Cooper (1911) 2 K. B. 550). There the petitioning creditors had obtained a judgment for £3750, and served a notice requiring the debtor to pay £3753, as being the amount due." In the margin the particulars set out the £3750 and interest at 4 per cent. to date. The debtor appealed against a receiving order made by the registrar on default of compliance with this notice. The Court of Appeal dismissed the appeal, and held the notice to be valid. The Master of the Rolls thought that a judgment debt, though by law carrying interest for the week elapsing between the judgment and the notice, was not a transaction to which the language of the Income Tax Acts relating to "yearly interest of money applied. Lord Justice Buckley said that the Bankruptcy Act 1883 required the notice to call upon the debtor to pay the debt in accordance with the judgment. To do this entailed paying the sum due plus the interest, the legal interest, attaching to it. Re Richardson; Ex parte St. Thomas' Hospital (1911) W. N. 100) raised a totally different question. Certain leaseholds were in 1896 vested in H. R. as trustee for his wife, who paid for them out of her separate estate. The lease expiring in March 1908, the landlords in April sued H. R. for breach of covenant and rent, the action ultimately being referred. In May 1910 the referee found against H. R. in the sum of £711. A month prior thereto H. R. was adjudicated bankrupt. In August they lodged a proof, but it was never adjudicated on. Meantime the wife remained in possession and received rents and profits, and was liable to indemnify the bankrupt against the landlords' claims. In Nov. 1910 the official receiver, as trustee in bankruptcy, and the landlords sued the wife and the bankrupt. The action was compromised on the footing that the wife paid £520. The next question was to whom the money belonged. Mr. Justice Phillimore held that it was part of the bankrupt's estate, but the Court of Appeal, on the landords' appeal, held that the right to the indemnity was not a contractual right, but merely an equitable one arising out of the relationship of trustee and cestui que trust. The Master of the Rolls observed that equity took a wider view, for a surety with an absolute liability to pay was in equity entitled to commence an action against the principal debtor and to obtain an order that he should pay off the creditor and relieve the surety. The common law view was, on the other hand, first pay, and then come for an indemnity. His Lordship held, therefore, that the money recovered from the wife was not a portion of the bankrupt's estate unless and until the landlords' claim was discharged. The effect of admitting the official receiver's claim would be, in the opinion of the Court of Appeal, to permit a trustee to make a profit out of his trust.

One or two rather useful decisions on the law relating to BETTING may be mentioned here. Stead v. Aykroyd (103 L. T. Rep. 727; (1911) 1 K. B. 57) was an information charging the appellant, under the Street Betting Act 1906, s. 1, with unlawfully loitering in a field for betting purposes. This field was being

utilised for mixed sports, partly athletic and partly horse racing. For the latter purposes the field had been adapted by certain temporary arrangements. The question was, under these circumstances, whether the premises came within sect. 2 as being "ground used for the purpose of a racecourse for racing with horses, or adjacent thereto." If this question were answered in the affirmative, then there would be an exemption. The Lord Chief Justice held that because the programme included two horse races it could not be said that the place was being used for the purposes of a racecourse. Such a view would be too great a strain on the language of sect. 2. The justices were deemed right in convicting the appellant. Rex v. Mortimer (103 L. T. Rep. 910; (1911) 1 K. B. 71) was an appeal against the conviction of a bookmaker, under sect. 3 of the Betting Act 1853, for using his premises for the receipt of money "as and for the consideration for certain assurances, undertakings, promises, and agreements to pay thereafter" money on bets on horse races. It was proved that the police wrote in the name of E. (an existing person) seeking to open a deposit account, the commissions not to exceed £5 without further remittance. Bets were subsequently made by the appellant, and postal orders passed to and were retained by the appellant. On Derby Day the police searched the premises, and found slips and entries in ledgers concerning the bets. It was held that the transaction came within the ambit of prohibited betting, and that the evidence was sufficient to justify conviction. The Court of Criminal Appeal held that where money is sent to a bookmaker and retained by him, and bets are made by him for the sender of the money at the address where the money is received, the case cannot be treated as an instance of an isolated transaction insufficient to prove user. No final opinion was given as to whether postal orders were money; but, semble, the receipt of a document convertible into money is the receipt of money.

BILLS OF SALE have in past years been a far more prolific cause for litigation resulting in the decision of moot points than is the case during the period now under review. There are only two or three cases which can fairly claim notice. In Newman v. Oughton; Pond and Oughton, Claimants (104 L. T. Rep. 211; (1911) 1 K. B. 792), a curious problem presented itself in an interpleader issue. A plaintiff recovered judgment against a debtor, and issued execution. The goods seized were claimed by some pawnbrokers, P. and O., who declared that they were included in a bill of sale of which they were the grantees and the defendant was the grantor. The plaintiff denied the claim. It appeared that the bill of sale had been given as security for £50, and the plaintiff argued that was not business carried on [by the pawnbroker] in accordance with the provisions of " the Pawnbrokers Act 1872, and that, as the claimants were not registered as moneylenders, the transaction was void. It was held that an isolated transaction such as this did not make the pawnbroker a moneylender.


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A somewhat curious point of law relating to COMMONS Was raised in Coaker v. Willcocks (104 L. T. Rep. 769; (1911) 2 K. B. 124) on the special subject of the obligation to fence. The action was in form one for wrongful distress, and the facts, briefly put, were as follows: The plantiff enjoyed rights of common, including pasturage, upon certain land forming a portion of Dartmoor. The defendant occupied a farm inclosed out of land forming a part of the same, and the defendant admitted that he was bound to fence his land against moorland cattle and sheep. Some sheep belonging to the plaintiff, grazing on the uninclosed land, strayed into the defendant's holding and were distrained by him damage feasant, and were by him driven into a pound within the same hundred, but more than three miles from the locality of the distress. The plaintiff alleged a grievance in this, inasmuch as the sheep had strayed into the defendant's land through the latter's omission to duly fence, and he further objected to a pound more than three miles off, as contravening sect. 1 of 1 & 2 Ph. & M. c. 12. An expert in local conditions assisted the court, and from his evidence it appeared that it was not customary on Dartmoor to erect fences of a kind different to that necessary to keep out Dartmoor sheep, whereas in this case the plaintiff's sheep were Scotch sheep, possessing unusual jumping powers. The Court of Appeal, on a somewhat unsatisfactory presentation of the dispute, came to the conclusion that the defendant was only bound to erect the fences usual in the locality, such being enough to exclude the ordinary sheep there found, and was not bound to fence out animals possessing such extraordinary jumping powers as Scotch sheep. On the construction of the statute already indicated, the court held that the defendant was entitled to judgment, and that a distrainer of cattle damage feasant may drive them to any pound within the hundred.

(To be continued.)

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THE Irish courts have had recently to consider on several occasion
the liability of tramway companies where accidents have occurred to
Decisions of the
passengers in the act of descending from tramcars.
Irish court on this point are to be found in Murphy v. Dublin United
Tramway Company (43 Ir. L. T. Rep. 11), Martin v. Dublin United
Tramway Company (1909) 2 Ir. Rep. 13), Roscoe v. Dublin United
Tramway Company (1909) 2 Ir. R. p. 13), and Pickering v. Belfast
Another decision on this point
Corporation (45 Ir. L. T. Rep. 34).

was given by the Court of Appeal on the 14th ult. in Breslin v,
Dublin United Tramway Company. The plaintiff, who was a passenger
on a tramcar of the defendante, was thrown off, as he was about to
descend, by a sudden backward jerk of the car.
He was very
seriously injured and took an action against the company.
evidence was as follows: "About fifteen yards from the stopping.
place I commenced to get down. Tram not going at full rate of
speed. Twenty-five to nine o'clock, dark. Came down the platform.
I did not see the conductor. I took a hold of the bar, the brass bar
that is on the platform. I got on platform. I swung on the step
and loosened my hold of the brass bar before the car stopped, and
immediately was thrown off and lifted completely over.'
quently he added: "When I got on to the step the car stopped, and
immediately it did it gave a sudden jerk backwards, snapping the bar
out of my hand and throwing me clean out. The next thing I
remember was after recovering consciousness." This practically was the
only evidence as to the cause of the accident. The King's Bench
Division oame to the conclusion that there was no evidence of
negligence on the part of the company to go to the jury, and a
direction of the judge at the trial in favour of the defendants was
upheld. Mr. Justice Madden, in the King's Bench Division, said that the
alleged evidence amounted to no more than saying that the defendants
ran a tramcar; and the Court of Appeal upheld this reasoning. The
result of this decision seems to be that a passenger on a platform
goes on the platform at the back of the car whilst it is in motion at
his own risk.

SOME strong comments were made by the Master of the Rolls and the Chief Baron in the Court of Appeal on the 26th ult., in the case of Oswald v. Farrell, with reference to the present state of business in that court. Owing to the way in which the number of judges in Ireland has been reduced, it is necessary that the two Lords Justices of Appeal should go on circuit. The practical result of that is that no appeals can be heard in the Court of Appeal during the months of March and July. With reference to the latter month, the case of appellants is particularly hard, as the Long Vacation intervenes before a full court can be formed. The appeal in question was by a defendant in a Chancery suit in which the sale of a farm had been set aside and the defendant had been ordered to repay the purchase money, amounting to about £700. A stay of execution had been refused by the court below, and it appeared that a summons in bankruptcy had been taken out against the defendant. The appeal was ripe for hearing on the 27th June, but it was impossible to have it heard before Lord Justice Holmes and Lord Justice Cherry had gone out on circuit. The Master of the Rolls said that if the Court of Appeal were manned as it should be, a litigant would not be deprived of his right of getting his appeal heard in the month of July, and, if he had demanded that his appeal should be heard, no Government could have refrained from keeping the Lords Justices in town and appointing commissioners of assize. The Chief Baron said that it was a startling thing that a man was ready to have his appeal heard and that the case was in the list for hearing, but that in consequence of the action of the authorities no court could be formed, and he pointed out the special hardship in the case if the appellant were made a bankrupt in the interval before his appeal had been determined. Ultimately it was arranged that a stay of execution should be granted on the appellant lodging £250 in court.

MUCH interesting evidence as to old-world customs and primitive habits with reference to certain sections of the population in Ireland was given before Mr. Justice Barton in the case of M‘Couaig v. M'Cormick and another. The action had reference to the practice of the farmers on Rathlin Island (off the coast of Antrim) with reference to the making of kelp from seaweed. The island has a great number of indentations or bays, locally known as "ports," into which seaweed, which is valuable for manure and for kelp-making, is washed from time to time. The plaintiff was the tenant of certain Jands on the island which had a frontage to the seashore of over a quarter of a mile in length, and he alleged that the defendants, who were the tenants of neighbouring lands, had entered his lands and deprived him of seaweed which had been washed up into certain ports on the plaintiff's lands. It appeared that the landlord, a Mr. Gage, had established a co-operative system for the distribution of kelp in the English and Scottish markets. For the purpose of this co-operative system the landlord placed the foreshore at the disposal of the tenants, giving all of them a share of the seaweed in proportion to the size of their holdings. There were thirty-five ports or creeks on the townland of which the plaintiff's and defendants' lands consisted. They took the "ports" in rotation, never taking the same in two successive years, each going on the lands of the other in turn, spreading the seaweed for drying, and leaving it in kilns for the purpose of the manufacture of kelp. The judge came to the conclusion that these curious rights were not enforceable easements, but were part of a commercial arrangement made between the landlord and the tenants, the details of which

Aug. 12, 1911.]


were worked out between the tenants themselves for the carrying on
of the kelp industry. He said that the rotatory system was perhaps
borrowed from some old traditional custom or habit, and was incor-
porated in the modern commercial arrangement. He decided that
the rights could not be enforced as easements, but might be termi
The case was therefore
nated on reasonable and proper notice.


Sydney, N.S.W., July 4, 1911.

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THE principle governing privileged communications was laid down by
Baton Parke in Toogood v. Spyring (1 C. M. & R. 181), when he stated
that those communications were privileged: "If fairly warranted_by
any reasonable occasion or exigency, and honestly made.
demand to apply the principle was made in the High Court in the
case of Howe and McColough v. Lees (1910, 11 C. L. R. 361), which
was an appeal by the defendants from a decision of the Supreme Court
of Victoria. The circumstances were as follows: Several persons and
firms carrying on business as stock and station agents in Bendigo
formed an association to regulate the trade, and one of the terms of
their agreement was that, should any default by made by a buyer,
notice thereof should be given to the secretary, and the secretary
should communicate the name of the defaulter to the other members.
A mistake was made by the defendants as to a supposed default of
Lees, who was not in default, and he sued for slander inasmuch
as the report had been communicated to the other agents and
The defence was privilege,
be had suffered loss in consequence.

but the judge of first instance, considering himself bound by a
decision of the Victorian court (Peatling v. Watson, 1909, V. L. R.
198) gave a verdict in favour of the plaintiff, Lees, on the ground of
there being no privilege. The law in Victoria on this subject is the
same as the law of England, and has been declared as applying to
Australia by the Judicial Committee in Macintosh v. Dun (1908) A. C.
390). Relying on Baron Parke's judgment in Tocgood v. Spyring (sup.),
as being applicable to distinguish between the case under notice and
Macintosh v. Dun, the defendants appealed to the High Court,
claiming privilege for the report as being obtained and issued by one
of a mercantile association to the members only for their mutual
protection, and not for the purpose of profit. The question of
malice not having come before the court for their consideration,
the decision of the Bench (Chief Justice Griffith and Justices Barton,
O'Connor, and Higgins, Mr. Justice Isaacs dissentiente), was on
the point of privilege. Separate judgments were delivered, and
Taking as their text the words of
the appeal was sustained.
Baron Parke in Toogood v. Spyring, "The law considers such
publication [of statements false in fact and injurious to the character
of another] as malicious, unless it is fairly made by a person in the
discharge of some public or private duty, whether legal or moral, or
in the conduct of his own affairs in matters where his interest
is concerned. In such cases the occasion prevents the inference of
malice which the law draws from unauthorised communications, and
affords a qualified defence depending on the absence of actual malice.
If fairly warranted by any reasonable occasion or exigency, and
are protected
honestly made, such communications




court declared that in the case there was a request on the part of the
agents for information as to defaults, and that to give it was the
moral and social duty of the defendants. The agents had a substantial
interest in knowing who were defaulters, and there was always
the probability of a reasonable occasion or exigency to warrant
such information being of great value (Clark v. Molyneux, 3 Q B.
Div. 237; Andrews v. Nott-Bower, (1895) 1 Q B. 888; Fleming v. Newton,
1 H. L. C. 363, et alia). Dealing with the argument that Macintosh v.
Dun (sup.) was in favour of the respondent, it was declared that,
allowing to it the most ample effect possible, it amounts to no
an individual, or
than an authority for the proposition that
association or corporation, that makes a business of collecting informa.
tion about traders' credit and selling it for reward to other traders has
no privilege to communicate defamatory matter in the information.
On the subject of "duty" the Chief Justice said: "With regard to
duty, I am of opinion that, when parties have made an agreement
which is not unlawful with regard to a matter in which they have a
community of interest, it is their duty, in the relevant sense of the
to the con-
word, and quite irrespective of any technical rules as
sideration for an agreement, to keep their promises." In his dis-
Benting judgment Mr. Justice Isaacs, dealing with the subject
interest," relating to



where an occasion it could only exist when the relation of a person to a number of others was a universal menace to them, said: "A man's solvency is not in itself, apart from actual or pending transactions, a matter of common interest' to all the traders in the community, and until some interest' arose to which it was relevant, Lees' reputation for solvency or insolvency was not at the mercy of the agents' asociation.' And on the subject of "duty" he said: "But the law does not permit one person to preferentially sacrifice a second person's reputation merely because of some interest, however slight, which a He must not forget that the second third person may possess. person has an interest too-that in his own character. Unless, therefore, that the situation is one in which social or moral consideration" impose upon him a duty and either legally or morally leave him no choice, he commits an actionable wrong."

The principle of Re Henley and Co. (9 Ch. Div. 469) which gave priority to the Crown as a creditor in the winding-up of a company was not accepted as applicable to the claim of the Crown in a bank

ruptcy proceeding in New South Wales. By the Act of 1898, upon a sequestration order being made, the property of the bankrupt vests in the official assignee, and certain sections provide for certain preferential payments in respect of wages, salaries, &o, and it is declared by sect. 48, sub-sect. 4, that "subject to the provisions of this Act, all debts proved in the bankruptcy shall be paid pari passu.' There is no provision in the local Act, similar to that in sect. 150 of the English Bankruptcy Act of 1883, by which the Crown is bound as are ordinary creditors. The facts of the local case, Re Martin; Ex parte Commissioners of Taxation (5 N. S. W. S. R. 181), are these: At the date of sequestration of his estate, Martin was indebted to the Commissioners of Taxation in the sum of £59 3s. 8d., in respect of land and income tax, which under the Taxation Act was constituted a Crown debt. The commissioners lodged a proof in the ordinary way, and the official assignee ranked the claim with the preferential creditors. To this the commissioners took exception, and the matter came before the Judge in Bankruptcy, who decided against them. On appeal to the Full Court, the judgment of the lower court was sustained, and the right to priority of the Crown was not recognised. In support of the Crown, Re Henley and Co. (sup.) was relied on, as was Re Galvin (1897, 1 Ir. Ch. 520); while for the respondent Clarkson v. AttorneyGeneral of Canada (15 Ont. R. 632; 16 Ont. App. R. 202) and Re Baynes (9 Q. L. J. 33) were the chief foundations of argument. Thus there were contrasted, in this Australian case of first impression, on the one side the judicial opinions of the Court of Appeal in England and the Court of Appeal in Ireland, and on the other side the judicial opinions of the Chief Justice of Ontario and the Chief Justice of Queensland. In his decision, which was upheld by the Full Court of New South Wales, the Judge in Bankruptcy, Mr. Justice Walker, pointed out that the Crown was not, in the strict sense, bound by the Bankruptcy Act, but might have remained outside the Act, and used the remedies, as by extent, open to it. But if it does come in with other creditors and prove, its rights It cannot 83 8 creditor must be determined by the Act. prove its debt in Bankruptcy and at the same time repudiate the enactment that (except as provided) "all debts proved in the The writ of extent by which bankruptcy shall be paid pari passu." the Crown can bind its debtors is applicable only so long as the property remains in the hands of the debtor, and was not applicable where the property had passed to the official assignee, as in this case. Further, seot. 44, sub-sect. 1, provides that a certificate of discharge does not release the bankrupt from Crown debts, and so preserved to the Crown the power to follow the released bankrupt, a privilege denied ordinary creditors. Distinguishing Re Henley and Co. (sup). he pointed out that there the property of a company remains vested in the company, liquidation notwithstanding, and so the Crown was in the position to issue execution. Further, the Crown did not come in under the Companies Act to prove its claim-it merely moved that the liquidator should pay the claim or be ousted by a writ of extent; he was merely holding possession of the company's property, which had not vested in him. The same remarks were applicable to Re Galvin (sup.). The judgment was against the Crown's contention. On appeal to the Full Court, a majority decision (the Chief Justice and Mr. Justice Owen) upheld the decision of the Bankruptcy judge, virtually upon the grounds given by him. Simpson, A. H. J. in his dissenting judgment, after pointing out that the question at issue could not arise under the English Bankruptcy Act, discussed the right of the Crown to priority on the ground of prerogative, and said: "There is apparently no actual decision in England on the point still the point might have arisen before 1869, and the absence of a decision may arise from the fact that the Crown never claimed such a right, or that such a right was never disputed." In the absence of any actual decision to bind the court, he followed the law laid down by the English and Irish Courts of Appeal. An argument based on the nocturnal energy of Lord Eldon and Lord Rosslyn, referred to by the former in Wydown's case (14 Ves. 80), had some weight with the majority of the court, as it was hardly possible that two Lords Chancellor would have risen from their beds to sign commissions of bankruptcy to enable the Crown's right of extent to be defeated, if they thought that the Crown had the right of priority in the administration of assets in bankruptcy.

The question of scienter in relation to a matter occurring in a public-house, when the publican is asleep, at a time when he might naturally be expected to be asleep, arose in the case of Bear v. Lynch (8 C. L. R. 592). A statutory penalty was inflicted on a publican when knowledge positive or assumed was an ingredient of the offence, and on appeal from the conviction the consideration of mens rea in the publican as a determining factor in the crime drew very contradictory opinions from the judges of the State Court and the High Court respectively. There was a difference of opinion among six judges as Peter Lynch, a to what were the actual components of crime. publican, whose house must close at 11 p.m., was asleep after that hour, but was awakened by the police when they visited his premises, only to see one Melrose, a visitor, charged with being on such premises not for a lawful purpose-to wit, he was gaming. Lynch was convicted for a breach of the Liquor Act, but carried the matter to the State Supreme Court (N.S.W.). The conviction was quashed, and on the subject of mens rea the judges differed. Chief Justice Darley and Mr. Justice Pring held that mens rea was a necessary ingredient of the crime, but Mr. Justice Cohen was against them. The special provision of the Liquor Act 1905 raising the point in sect. 19 (4), which provides that a licensee upon whose premises any person is so found (“in contravention of the provisions of this Act") shall, unless he proves be liable to & that such person was there "for a lawful purpose,' penalty. Couneel for the licensee relied on Sherras v. De Rutzen (1895)

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