« EelmineJätka »
1 Q B. 918; Re Frocklebank (23 Q. B. Div. 461); and Queen v. Tolson (23 Q B. Div. 168). In his judgment in the State Supreme Court, with which Chief Justice Darley agreed, Mr. Justice Pring on the question of scienter said: "I am further of opinion that it is sufficient for the licensee to show that he himself is not privy to the unlawful purpose, and that it is not enough to warrant conviction that the person found on the premises has an unlawful purpose. Otherwise, if an intruder came into an hotel after 11 p.m. and asked for liquor. the licensee would be liable even though he refused the request and took steps at once to forcibly eject the intruder." Mr. Justice Cohen in his dissenting judgment said: "The last point for consideration is, Can the licensee be liable in the absence of proof of scienter? In my opinion he can. I rely, first, upon the language of sect. 19 (4), which in no way suggests the necessity of such proof, but in clear and precise language imposes upon him in plain, unequivocal terms the unqualified responsibility of showing that the person was upon his premises for a lawful purpose." Upon appeal to the High Court of Australia, the same question of scienter was argued, but, as the matter was decided on another point, the court was not called upon to pass on that point. Chief Justice Griffith, when referring to the arguments in support of mens rea, said: "It is sufficient, with regard to that doctrine, to say that licensees, in view of special privileges conferred upon them, are made responsible in a special degree for what is done on their premises. In some cases mere ignorance is not a defence. I express no opinion on that point, or on another that may arise some day, which I regard as one of considerable difficulty -that is, whether, if it were found as a fact that a licensee had taken all reasonable care to prevent any person coming on his premises for a purpose which is not lawful, or had taken all reasonable care to ascertain that the purpose for which a person had come on his premises was lawful, that would be a good defence to a charge under this section." Mr. Justice O'Connor was more positive: "It is within his [the licensee] power to prevent the presence therein of persons whose purpose is to contravene the liquor laws. The Legislature has by the sub-section imposed upon him a duty which practically forces him to police his own premises by making him liable to a penalty if any person not within the excepted class of travellers and inmates is found on the licensed premises during forbidden hours. But it permits him to escape from that liability if he can prove that the person was on the premises for a purpose not made unlawful by the Liquor Acts. The licensee's knowledge of the person's purpose has no relation to any element of the offence so constituted." Mr. Justice Isaacs on the same point said: mens rea is immaterial to the offence charged. The language is plain and unequivocal. The one ground of exculpation is that the person was on the premises for a lawful purpose and not that the licensee believed he was. There is no room for such a construction. The guiltiness of mind is beside the question when the condition of mind of the accused is not material. The Privy Council said in Bank of New South Wales v. Piper (1897) A. C. 383, at p. 389): The absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which if true would make the act charged against him innocent.' Act' there is intended to include 'cmission.' But in the present case no aot or omission is charged against the accused. It is the mere presence of another person that has to be justified; and the licensee's power of control over his own premises and his consequent power of profiting by a breach of the Act are the basis of the provision." It may be mentioned that in a subsequent case of the same kind in New South Wales, Mr. Justice Pring accepted the expression of opinion by Justices O'Connor and Isaacs and decided against his own judgment. It will be interesting to see what the High Court may decide on mens rea, if the point is specially carried before that tribunal, if constituted without the presence of Justices O'Connor and Isaacs.
An New Zealand, a while since, a contest arose between two opposing claimants to a whale. How the whale came to be the Bubject of litigation between two private citizens I do not know, nor does it matter; suffice it that it was caught in New Zealand waters, and the decision as to which of two claimants had a right of property in it was left to Chief Justice Sir Robert Stout. While the case was proceeding, and the whale, so to speak, was lying in gremio legis, the claim of a third and a fourth party was raised--to wit, the claim of Her Majesty the Queen to its tail, and the claim of His Majesty the King to the rest of the caroase. The report of the case does not show what use their Majesties could make of the whale were the Chief Justice to hand it over to them; it simply shows that the property rights of their Majesties to the whale caught in New Zealand waters were not neglected, even in the Antipodes. The right of their Majesties to whales caught in British waters was declared by the statute 17 Edw. 2, c. 2, and a translation of the words of Bracton on the subject of royal fish says: "In the case of the sturgeon, the King shall have the whole, through his prerogative; in the case of the whale, according to some, it suffices if the King shall have the head hereof and the Queen the tail." Be Bracton's division of the whale what it will, and he does not say who takes the body, the statute gives the whale in the first instance to the King. The learned Chief Justice was not called upon to see to the division of the whale according to Bracton; all he had to do was to say if the statute of Edward II. was in force in New Zealand in the first decade of the twentieth century. He disposed of the royal claim shortly. In the course of his judgment he said: "This statute is placed by Blackstone under the chapter dealing with the King's revenue, and there are many other statutes that dealt with the King's revenue, such as prisage and butlerage on wine, and this question of royal fish was called by Blackstone a tenth branch of the King's ordinary revenue. It is
obvious that such statutes could not possibly apply to New Zealand. Whaling was common in New Zealand prior to New Zealand being proclaimed a part of the British Dominions. After it was declared part of the British Dominions, and whilst under the dorinion of New South Wales, no claim was ever made to the whales caught in New Zealand as royal fish, and whaling was very active in New Zealand after 1829. The fact that since the proclamation of the Queen's Sovereignty over New Zealand, a period exceeding seventy years, no claim has ever been made on behalf of the King or representatives of the Government for the thousands of whales that have been caught in New Zealand is strong proof that this statute was not thought to be applicable to the circumstances of the colony. I am of opinion that this statute has no applicability to New Zealand, and that though the right to whales is expressly claimed in the statute of Edward II., cap. 2, as part of the royal prerogative, it is one not only that has never been claimed, but one that would have been impossible to claim without claiming it against the Maoris, for they were accustomed to engage in whaling, and the Treaty of Waitangi assumed that their fishing was not to be interfered with; they were to be left in undisturbed possession of their lands, estates, forests, fisheries, &c. I am therefore of opinion that, so far as this ground of appeal is concerned, it has no validity.”
COMMENTS ON CASES.
THE decision in Gillow v. Durham County Council (noted ante, p. 317) arrived at by the Court of Appeal is one of great importance, and it is very desirable that a point aroueing so much feeling should be carried to the final arbitrament of the House of Lords. The point lies in a nutshell. Can the managers of a non-provided school appoint their caretaker, or is the appointment in the hands of the local authority? The wages of caretakers are found by the latter, and it would seem, therefore, not to be out of harmony with abstract equity that those who pay the piper should also call the tune. The Education Act 1902 is not at all conclusive on the point, though sect. 7 thereof provides that the local education authority shall "maintain and keep efficient "the schools in their area, and "have the control of all expenditure required for that purpose other than expenditure for which under this Act provision is to be made by the managers." The plaintiffs (the managers) contended that their powers of management with which the Act clothed them involved the duty of cleaning and the appointment of the cleaner, and that the privi leges of the local education authority were in this matter restricted to paying. The defendants urged that the duty of maintaining and keeping efficient the schools entailed the further duty of providing for the cleaner. Mr. Justice Hamilton acceded to the argument of the plaintiffs, but the Court of Appeal by a majority have reversed this and hold that the local education authority's view was well founded. The matter is one of more general importance than may at first sight seem to be the case. The employment of old parish favourites long past work on school premises is a favourite scheme, and children are in consequence brought to a school inadequately ventilated, warmed, and cleaned. There is, therefore, some reason for the contention that the caretaking and cleaning should be regarded as an important factor in the "maintenance " of a school.
Brown v. Burt (noted ante, p. 318) decides a somewhat curious point of Revenue law. An American citizen lived on board a yacht anchored in an Essex port. The residence seems to have been & complete one, for it included feeding as well as sleeping on board. While flying a foreign flag, the yacht seems to have been on no register, though at one time she had been upon the British register. This course of events seems to have gone on for a period of twenty years. In many respects the arrangement was economical, for the owner had paid neither rates nor taxes nor harbour dues, although the yacht has remained anchored within a quarter of a mile from the shore within the boundaries of the local anthority. The Income Tax Commissioners demanded a return of income tax, and, receiving none, estimated it at £10,000, and the appellant appealed on the ground of foreign nationality, and further urged that the sole source of income was by way of remittance from abroad paid to a London bank. The argument also raised the point that the appellant did not reside in the United Kingdom, and that the yacht never left tidal waters. Mr. Justice Hamilton and the Court of Appeal have, however, concurred in finding that there was such a residence, and that the appellant was liable to income tax. "Residence is a criterion of some difficulty, for it is a word having various meanings under various circumstances. In Cesena Sulphur Company v. Nicholson (35 L. T. Rep. 275; 1 Ex. Div. 428) it was laid down that it was where a person slept and lived, and domicil has nothing to do with it. This point is material in regard to the case recently decided, for the yacht had been used for a long period as a permanent spot for sleeping and living. The provisions as regards absenteeism and temporary residence mark a distinction between the mobile and immobile resident. Inland Revenue v. Cadwalader (5 Tax Cas. 101) illustrates another American case where a foreign barrister took a shooting lodge in Scotland for three years and resided in it for two months each year and was regarded as a person residing in the United Kingdom. On the other hand, a person who is always abroad during the year of assessment, though a portion of his family occupy his house here, may not be a resident in the United Kingdom: (vide Turnbull v. Inland Revenue, 4 Sc. L. Rep.
15). The test of liability is not so much the residence as the residing, and this must amount to something like regular eleeping and living in the residence.
THE Divisional Court in Bolton v. Everitt (noted ante, p. 320) has
ever, that it by no means follows that, though there is no presumption of law that a wife is dependent upon her husband's earnings because of his legal obligation to maintain her, this lega obligation is to be ignored in deciding on the fact of her dependency. He then went on to indicate in what way the existence of the obligation was to be taken into account. Where every employer of labour will derive gratification from this clear pronouncement of the House of Lords lies in the circumstance that he will not be compelled to fulfil an obligation which his workman has personally failed to discharge. And there it was that the decision of the Court of Appeal So strangely eried.
but that is not so. It must be admitted that the by-law does not lay it down that the vehicle should be kept within a certain distance of the kerb. The court, consisting of Lord Alverstone and Justices Lawrance and Darling, came to the conclusion that the by-law had not been infringed, and that the appellant had kept to the left or near side of the road. The case illustrates
aptly the way in which valuable road space is wasted. Two lines of such vehicles can be seen in London streets any day moving slowly along with many feet of unoccupied roadway on their near sides. At intervals in the centre are standards for lighting or tramway purposes. The case shows that by-laws to be of any use must be so drafted as to compel carters to keep within a given amount of inches from the kerb, and that no attempt should be made on the part of one slow cart to overtake a slower one if by so doing more than a momentary obstruction should be caused to the more mobile traffic. Now that the London County Council is trying to introduce some reforms in this matter, it is specially desirable that their attention should be drawn to the case in point.
OWING to the fact that partners are tenants in common in equity of the partnership assets, practitioners are apt to think that the concurrence of the legal personal representatives of a deceased partner is necessary upon a sale or mortgage of the partnership real estate, In Re Bourne; Bourne v. Bourne (95 L. T. Rep. 131; (1906) 2 Ch. 427) the facts were shortly as follows: A surviving partner carried on the business in the partnership name, and continued the partnership account at the bank, which was overdrawn to a considerable amount at the death of the deceased partner and remained so until the business was finally wound-up. After paying certain moneys into this account and drawing certain moneys out. he deposited with the bank the title deeds of certain partnership real estate to secure the overdraft, and it was held that, in the absence ef evidence to the contrary, the bank were entitled to assume that the account was continued for the purpose of realisation, and that sums paid into and drawn out of that account by the surviving partner were paid in and drawn out for the purposes of the partnership, and that the mortgage was a valid security and took priority over the lien of the executors of the deceased partner. Lord Justice Vaughan Williams in the course of his judgment said: "The real truth of the matter is that, leaving out all questions of legal estate, there is as between the surviving partner and the representatives of the deceased partner an overriding duty to wind-up the partnership assets and to do such acts as are necessary for that purpose, and, if it is necessary for that winding-up, either to continue the business or borrow money, or to sell assets. Whether those assets are real or personal, the right and the duty are co-extensive." And Lord Justice Romer said: When a partner dies and the partnership comes to an end, it is not only the right but the duty of the surviving partner to realise the assets for the purpose of winding-up the partnership affairs, including the payment of the partnership debts." And, referring to the lien of the deceased partner's executore, his Lordship said: "It is really what one may call a general lien upon the surplus assets and does not affect each particular property so as to interfere with the right of the surviving partner to deal with the separate property belonging to the partnership for the purpose of realisation, and to give a good title to persons dealing in good faith with him in respect of those properties. The power of the surviving partner of course extends to a sale, and it also extends to giving a mortgage on any particular part of the property belonging to the partnership to secure in good faith one of the partnership debts." Lord Justice Fletcher Moulton doubted whether "lien" was the word which best described the right of the deceased partner. He thought that the right was really a claim against the surplus assets after realisation. It had previously been decided in Re Clough (31 Ch. Div. 324) that a surviving partner could give a valid charge on the real property of the partnership by way of security for a debt incurred by the partners during the life of the deceased partner.
WHEN Commenting upon the decision of the Court of Appeal in Keeling v. New Monckton Collieries Limited (see 130 L. T. Jour. 435), we unhesitatingly expressed our surprise that the presumption that a husband is liable to maintain his wife-arising from her right to support which is inherent in her position as a wife-should have been applied in that case. It seemed to us, we ventured to remark, somewhat startling that such a presumption should be permitted to prevail, so far as a wife's right to compensation under the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58) is concerned, after the observations by the learned Lords in the case of Hodgson v. Owners of West Stanley Colliery (102 L. T. Rep. 194; (1910) A. C. 229). The Lord Chancellor (Loreburn) there said that it was for the " County Court judge to ascertain, purely as a question of fact, who are dependent," and that there was no room for legal presumptions "; while Lord Macnaghten observed that the question of dependency was not a question of law at all, but was purely a question of fact, a conclusion that was expressly concurred in by Lord Shaw. But, as we then pointed out, because the House of Lords did not go serialim through the earlier decisions of the English and Scotch courts and definitely dissent from them, the learned judges of the Court of Appeal before whom Keeling's case W88 argued unanimously decided that those decisions could not be regarded as overruled. The principal English_cases were Coulthard v. Consett Iron Company Limited (93 L. T. Rep. 756; (1905) 2 K. B. 869) and Williams v. Ocean Coal Company Limited (97 L. T. Rep. 150; (1907) 2 K. B. 422). In the Scotch courts also there were two cases of importancenamely, Cunningham v. M'Gregor and Co. (3 Fraser, 775) and Sneddon ANOTHER point of which it may be well to remind practitioners is v. Robert Addie and Sons' Collieries (6 Fraser, 992). In Keeling's that if a conveyance is made subject to certain restrictive covenants case (ubi sup.) the wife had not cohabited with her husband for and stipulations, one of which is that the vendor reserves to himself upwards of twenty years, and had supported herself during the whole the power of allowing a variation of the plans and conditions, he of that period by her own exertions. According to the finding of the might go so far as to alter the building scheme by closing a road. County Court judge, there had been no abandonment by her of her In Whitehouse v. Hugh (95 L. T. Rep. 175; (1906) 2 Ch. 283) the legal right to support, and consequently he awarded her compensaplaintiff purchased a plot of land which was part of an estate laid tion. But he was quite unable to find that, as a fact, she was out by a building society upon a building scheme. On the "wholly or in part dependent upon the earnings of the workman at sale of this plot to the plaintiff's predecessors in title it was the time of his death shown to satisfy the definition of "depenon a plan of the estate as bounded on one side by dants" which is contained in sect. 13 of the Act. The truth was a vacant space, which, though not named in the plan as entirely the other way; she had not benefited by such earnings for road, had been in fact roughly made out as a road, though nearly a quarter of a century. That being so, it was certainly an only as a cul de sac. The conveyance was made subject to a power astonishing conclusion to come to that the wife was a "dependant," in the vendors of allowing a variation of the plans and conditions. having regard to the explicit ruling of the House of Lords that and it was held by the Court of Appeal (affirming the decision of dependency must in each case be treated as a question of fact. The Mr. Justice Kekewich) that the vendors had an absolute power to opportunity, however, having been afforded to the House of Lorde, alter the building scheme by closing the road. Lord Justice Vaughan by means of an appeal to them in Keeling's case (noted ante, p. 267), Williams in the course of his judgment, referring to the power of of once more dealing with this troublesome subject, whatever doubt varying the plans and conditions, said: "I am not sure whether that thereon may have previously existed must now be considered as condition gave the society power to make any alteration in the completely removed. The opinions of their Lordships scheme which they pleased, such as what counsel for the appellant in comprised in the judgment that was delivered by Lord Atkinson. the course of his argument called a radical alteration, but it is clear The learned Lord remarked that one might, he thought, have that at any rate it covers the closing of this road." not unnaturally expected that the presumption of law upon which the decision of the Court of Appeal in that case was based could not, as a judicial guide in cases euch as the present, have survived the decision of the House of Lords in Hodgson's case (ubi sup.), if not of its decision in Main Colliery Company v. Davies (83 L. T. Rep. 83; (1900) A. C. 358). This was how the matter struck us, as we have mentioned above, His Lordship added, how
MISCELLANEOUS PRECEDENTS (continued).
THIS INDENTURE made the
the county of of the one part and C. D. of E. F. of and the said A. B. (hereinafter called "the trustees") of the other part WITNESSETH that under the authority of the School Sites Acts and with the consent of the Right Rev. Lord Bishop of in whose diocese the said parish is situate (testified by his executing these presents) and in consideration of the sum of £ now paid to the said A. B. by the trustees (the receipt whereof the said A. B. hereby acknowledges) the said A. B. AS BENEFICIAL OWNER hereby grants and conveys unto the trustees and their heirs all those the land and buildings situate in the parish of aforesaid and till recently used for the purposes of a public elementary school (which said premises are more particularly delineated on the plan hereto annexed and thereon coloured ) together with all easements appurtenances and hereditaments corporeal or incorporeal belonging thereto or connected therewith and all the estate right title and interest of the said A. B. in or to the said premises TO HOLD the same unto and to the use of the trustees their heirs and assigns upon the trusts following viz. : (a) Upon trust to permit the rector for the time being of the parish of aforesaid or during his absence or disability or the avoidance of his benefice the officiating minister for the time being of the said parish to use the said premises or any part thereof for the purposes of a Sunday school under his exclusive control. (b) Subject thereto upon trust to permit the said premises to be used as far as practicable for the following purposes for the benefit of children and adults or children only of the labouring manufacturing and other poorer classes of the said parish of viz. (i.) for the purpose of classes for religious instruction in accordance with the doctrines of the Church of England (ii.) for the purpose of similar instruction by means of an evening school or evening or other classes or lectures of an educational character and (iii.) for the purposes of physical instruction by means of a gymnasium or otherwise. (c) Subject as aforesaid upon trust to permit the said premises to be used for purposes other than those herein before specified subject to the charge of a payment sufficient at least to defray the expenses incidental to such use in each case but so as not to interfere in any way with the educational character of the trust. PROVIDED ALWAYS that the said premises shall not nor shall any part thereof be used for any purpose whatsoever which may be inimical to the welfare or contrary to the principles of the Church of England. And it is hereby further declared that any income received by the trustees (including all sums received in respect of the use of the said premises) shall be applied by the trustees for the insurance against fire and repair and improvement of the school buildings and other expenses incidental to the adminis tration of the trust and subject thereto in aid of the general purposes of the said Sunday school and religious or other instruction. And further that subject to the trusts and declarations aforesaid the trustees shall have power to make and enforce such rules as they may in their discretion think fit for the management and control of the said premises or to delegate such power to the rector or other officiating minister as aforesaid. And further that the power of appointing a new trustee or new trustees of these presents shall be exercis. able by the rector for the time being of the said parish of IN WITNESS &c.
Certificate to be Indorsed on the Deed. We A. B. clerk rector of the parish of C. D. clerk rector of the parish of and E. F. clerk rector of the parish of being three beneficed clergymen of the diocese of do hereby certity that A. B. clerk rector of the parish of within the said diocese of being about to convey a portion of land situate in the parish of aforesaid for the purpose of a school under the powers of the Act passed in the fifth year of the reign of Her late Majesty Queen Victoria intituled "An Act affording further facilities for the conveyance and endowment of sites for schools" we have at his request inspected and examined the portion of land and have ascertained that the same is situate at in aforesaid and that the extent thereof does not exceed one AS WITNESS &c.
The following judges of the King's Bench Division will remain in London during the whole of the Michaelmas Sittings-viz.: Mr. Justice Grantham, Mr. Justice Darling, Mr. Justice Bucknill, Mr. Justice A. T. Lawrence, Mr. Justice Coleridge, Mr. Justice Hamilton, Mr. Justice Scrutton, and Mr. Justice Bankes.
The August general sessions for cases arising on the north and south sides of the Thames will commence on Tuesday next, the 15th inst., at the Sessions-house, Newington, at 10.30.
Mr. A. J. Arthy, for thirty years clerk to the county justices at Southend, and also clerk to the Southend Borough Bench, has tendered his resignation.
At Westminster Police-court on the 29th ult. a new point as to the magistrate's jurisdiction was taken by a solicitor appearing on behalf of a defendant summoned for arrears due to the Surprise Friends of Labour Loan Society, a Pimlico financial association. It was contended that as the defendant lived at Harrow the magistrate had no power to make any order, the wording of the Loan Societies Act giving jurisdiction solely to justices of the division "where a defendant happened to be or reside." Mr. Tasker, representing the loan society, said that if the objection was a good one it would revolutionise the procedure of loan societies. The magistrate decided that the objection as to his jurisdiction must be sustained.
We have received from Butterworth and Co. Office Procedure and Business Correspondence, by H. Clemson, who is already known for his books on the machinery and procedure of business. The present work forms an excellent guide to those entering a commercial career, and should also be of assistance to candidates for business examinations.
Low's Handbook to the Charities of London (Charles H. Sell) is in its seventy-sixth year, and the 1911 edition has been brought up to date. It gives the objects, date of formation, office, income, expenditure, invested funds, bankers, treasurers, and secretaries of over 1200 charitable institutions, and, being arranged alphabetically, is invaluable to the philanthropist.
Mr. William Wright Kirkman, of The Grange, Timperley, Cheshire, and of John Dalton-street, Manchester, solicitor, of the firm of Mesers. Taylor, Kirkman, and Co., who died on the 29th May, aged sixty. eight years, left estate of the gross value of £54,854, of which the net personalty has been sworn at £33,126. He left £250 each to the Solicitors' Benevolent Association and the Manchester Law Clerks' Friendly Society.
According to the South Wales Daily News, as the result of negotiations which have recently been proceeding between the University College of Wales and Monmouthshire and the Joint Board of Legal Education for Wales, the University College authorities have found themselves in a position to decide upon the immediate appointment of a lecturer in English law. The new lecturer will be expected to take up his duties at the opening of the next session in October. The course of lectures which will be undertaken in the immediate future will be designed primarily to meet the requirements of candidates for the intermediate and final examinations of the Law Society and of students reading for the degrees of the University of Wales. This department will add effectively to the important functions already performed by the college, and it is believed will supply a much-felt want in South Wales and Monmonthshire. The success negotiations is mainly due to the efforts of Sir T. Marchant Williams, Alderman Lewis Morgan, and Mr. C. Dauncey, secretary of the Monmouthshire Education Committee. The appointment will at once prove of considerable convenience to articled clerks, many of whom at present spend many weeks in London coaching before their immediate and final examinations for law. This will henceforth be unnecessary, as all that can be secured in this respect in London will in future be obtained at the Cardiff College. The new departure will therefore be hailed with delight by those students from Glamorganshire and Monmouthshire, of whom it is estimated that at least 250 undergo examinations every year.
There has been a feeling of dissatisfaction with the jury system in Germany for some years. In that country trial by jury is a com. paratively new institution, having been introduced as recently as 1848. The head of the abolition movement is President Wolf, of Neim, who has just published in the Deutsche Juristen Zeitung an article setting forth his views. We have not seen the original, but, judging from his conclusions published in one of the leading journals of Paris, the writer is not influenced by any sentimentalisme malsain. He writes: There ought to be no hesitation to-day, when one sees this form of justice in operation, impregnated with a sentimentality which one can sometimes understand in an isolated case viewed from a humane standpoint, but which generally disassociates everything by ignoring the notion of the offence, and which debases the law to the level of an epouvantail (a_scarecrow-something terrifying without danger). King Frederick William I. of Prussia, having to confirm a death sentence of one condemned, who had acted really with a noble end in view, wrote at the foot of the judgment: • Tell the delinquent that His Majesty regrets, but it is necessary that the condemned should die, for justice must not be suppressed." This was the word of a stern man," the writer proceeds, but it is grand. It educated the men who were to fight campaigns in Silesia and the War of the Seven Years, and it trained up the heroes who undertook the campaigns. I fear that our jurisprudence will not produce like fruits if it allows itself to be guided much longer, not only by considerations of humanitarianism, but still more by an unhealthy sentimentalism effeminate and diffuse. By pity for the criminal it forgets the gravity of the crime, and makes the law yield to it."
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Local Government-Public Park-Conditional Sale of Land-Specified Acreage to be used as Park-Cutting down Trees-Use of Part of Park for Street widening-Bradford Corporation Gas and Improvement Act 1871 (34 & 35 Vict. c. xciv.), 8. 52-Street or Park Improvement— Ultra vires—Injunction.-S. C. L., being desirous of benefiting the town of B., offered to sell to its corporation a piece of land consisting of fifty-three acres with mansion-house thereon on condition that an area of forty acres should be left unbuilt upon for the use and enjoyment of the public. The corporation thereupon presented a memorial to the Treasury in which it was stated that forty acres of the said land would be set apart as a public park and the residue sold at such time and in such manner as the corporation
sbould determine, and the proceeds devoted to part payment of the mortgage debt hereafter referred to. The memorial was presented for the purpose of obtaining the sanction of the Treasury to the purchase and to raising the purchase money on mortgage of the land. That sanction was obtained, and by a conveyance dated the 27th Oct. 1870 the piece of land, consisting of fifty-three acres or thereabouts, was conveyed to the corporation, they covenanting to set apart forty acres for the purpose of a public park, with power to close the park on certain days in the year. By a local Act passed in 1871 the corporation could acquire lands and appropriate them or any other land then vested in them for the purposes of parks or places of public resort or recreation and improve and maintain the same and make approaches thereto and remove walls and fences and do all such acts as might appear necessary to them "for the better formation, improvement. use, and enjoyment of every such park and place.' The purchase money was obtained by the corporation from a bank on mortgage of the land, which was afterwards maintained by them as a public park. The corporation then adopted a scheme for widening the K.-road, which ran for ha'f a'mile on the north-east side of the present wall of the park and upon which road tramway lines were laid, and for widening the approach from the K.-road to the park. Under the scheme it was proposed to erect a dwarf wall with palisade thereon in lieu of the present brick wall separating the park from the K.-road, and to throw a piece of land containing 5180 square yards of the park into the K.-road, and to make a causeway or pavement thereon. The scheme would necessitate the outting down of 130 trees in the park, seventy of which bad been cut down in part execution thereof. An action was thereupon brought by the Attorney-General at the relation of a ratepayer of B. for an injunction restraining the corporation from carrying out their scheme. For the plaintiff it was contended that the whole of the land had been purchased under statutory powers and subsequently appropriated as a public park, and that it was ultra vires for the corporation to use any part thereof for street. widening purposes. For the corporation it was urged that the additional land to the K.-road did not form part of land which must be devoted to park purposes, and that, even if it did, the scheme was necessary for the use and enjoyment of the land as a park. The authority of Attorney-General v. Sunderland Corporation (34 L. T. Rep. 921; 2 Ch. Div. 634) was relied on by the plaintiff. Held, that the corporation retained their original right to dispose of thirteen acres of the park for other purposes; that what was proposed to be done was not solely a street improvement; and that the action must be dismissed with costs.
[Attorney-General v. Bradford Corporation. Ch. Div.: Eve, J., July 26.-Counsel: Glen, K.C., J. J. Wright, and Merlin; P. O. Lawrence, K.C., Jessel, K.C., and Underhill. Solicitors: Fielder, Jones, and Harrison, for Perkins and Hind, Bradford; Cann and Son, for Frederick Stevens, Bradford.]
The Laws of England. By the Earl of HALSBURY and other Lawyers. Vol. XVII. Butterworth. THIS Volume contains several subjects of the greatest importance, and its advent has been anxiously awaited for the past two months. The contributors are as follows: Industrial, Provident, and Similar Societies, by Sir Edward W. Brabrook, C.B, Dir.S.A., late Chief Registrar of Friendly Societies, and Cecil A. Hunt, M.A., LL.B.; Infants and Children, by His Honour Judge Tindal Atkinson, P. V. Smith, M.A., LL.D., Chancellor of the Dioceses of Manchester and Durham, E. Knowles Corrie, M.A., and Cecil A. Hunt, M.A., LL.B.; Inhabited House Duty, by Sir Francis Gore, Solicitor to the Inland Revenue; Injunction, by A. F. Peterson, K.C. and C. J. Parton; Inns and Innkeepers, by Mr. Justice Pickford and R. Mortimer Montgomery, M.A.; Insurance, by the Right Hon. Arthur Cohen, K.C., B. A. Cohen, B.A., and C. L. Chute; and Interpleader, by Master W. F. A. Archibald and R. E. Ross, LL.B. The law is stated as at the 17th June 1911. The next volume is shortly to be ready, and will extend from Intoxicating Liquors to Libel and Slander.
Imperial Acts. Two vols. Stevens and Sons.
The All India Civil Court Manual. By T. V. SANJIVA Row. THIS work has been produced to meet the need felt by judges and practitioners all over India for handy volumes of Acts and regulations in regular use, with notes and cases. Taking the Government volumes of 1909 as his guide, the late Mr. Sanjiva Row brought his great experience to bear on a work which exactly meets the aforesaid need. It is thoroughly up to date in every way, the arrangement is clear and methodical, and the life history of each enactment is shown in an historical memoir. The second volume, dated the 11th March 1911, was completed by Mr. T. A. Venkasawmy Row. It contains a chronological table of the enactments collated in the two volumes, and a compre hensive subject index.
Building in London. By HORACE CUBITT, A.R.I.B.A., P.A.S.I. Constable and Co.
THIS is a most complete work on a subject of great and constantly growing importance. The first chapter deals with the extent and administration of the county of London, and the Acts, by-laws, and regulations. The next three chapters treat of streets, sanitation, frontage, industrial dwellings, and construction. Chapter 5 deals with provisions affecting new and existing buildings, including the law as to means of escape. In chapter 6 we find the City requirements, statutory rights between private parties, notices, applications, appeals, and exemptions. Mr. H. J. Leaning, F.S.I., contributes a chapter on cost of building in and around London, and Mr. Sydney A. Smith, F.S.I., writes on valuation, development, and rating of London property. In each of these chapters the whole of the legal requirements are included and explained, and the cases relating thereto are clearly set out, so that the lay reader will have as little difficulty as possible. In addition, the Acts, bylaws, and regulations are printed at the end, and a very full system of cross-references is used. The index is very full,
and the whole is remarkable for clearness, care, and good printing.
The Principles of Muhammadan Jurisprudence. By ABDUR RAHIM, M.A., a Judge of the Madras High Court. London: Luzac and Co.; Madras: S.P.C.K. Depository.
As Lagore Professor in 1907 at Calcutta University, Mr. Justice Rahim delivered a series of lectures which form the substance of the work before us. After an introductory chapter there are four devoted to an exposition of "Al-Usúl,” or the science of law, as developed by the earlier Muhammadan jurists. The remainder of the book explains the fundamental theories and ideas of the system, and enunciates the leading principles which give the Muhammadan Code its distinctive features. To convey these to the modern legal mind was not easy, but the author has certainly succeeded in producing a treatise which shows it to be a scientific system and not mere collection of rules and dicta.
A Guide to the Law of Betting, Civil and Criminal. HERBERT W. ROWSELL and CLARENCE G. MORAN, Barristers-atlaw. Butterworth and Co.
THIS is a useful little work on & subject not separately dealt with, and designed for the use of the bookmaker and his client, the police inspector, and the student, as well as the practitioner. Mr. Rowsell deals with the civil portion and Mr. Moran with the criminal. The collection of cases seems complete, and special attention is given to those on new consideration. The numerous Scottish decisions on the Street Betting Act 1906 are included.
Mercantile Law. By D. F. DE L'HOSTE RANKING, M.A., LL.D.,
THIS book has been admirably arranged for the convenience of the large class of readers to whom it appeals. The text is divided into sections and sub-sections, and there is a synopsis of each chapter. Contracts and negotiable instruments are very fully covered, and there are chapters on Agency, Sale of Goods, Suretyship and Guarantees, Insurance, Bailments, Carriage, Merchant Shipping, and Securities. At the end is a miscel
laneous chapter on Patents, Copyright, Moneylenders, &c. All the usual tables are provided, and there is a glossary of terms and a good index.
The Law of Domicil in its Relation to Succession. By NORMAN BENTWICH, Barrister-at-law. Sweet and Maxwell. WITH the essay on which this book is founded Mr. Bentwich won the Yorke Prize in 1910. He is usefully critical of judicial dicta, and enhances the value of his work by a brief consideration of Private International Law as to Succession, and Continental theory and practice. Mr. Bentwich takes a favourable attitude towards the doctrine of Renvoi, and strives to elucidate a rule from the cases.
The Law of Sedition and Cognate Offences in British India. By W. RUSSELL DONOGH, M.A., Barrister-at-law. Calcutta: Thacker, Spink, and Co.
THIS handbook has been evoked by the importance which sedition has assumed of late in India and the preventive legislation introduced to exercise better control of platform and Press. The author is an advocate of the Calcutta High Court, and is therefore well qualified to deal with the subject. The book is suited both for lawyers and lay readers, and deals as fully as its limits allow with the penal and preventive law.
The Growth of English Law. By EDWARD STANLEY ROSCOE, Admiralty Registrar of the High Court. Stevens and Sons. MR. ROSCOE has collected in this small volume a dozen essays of considerable interest to those who study the evolution of law and procedure in England. Among them may be mentioned the Forestal Law and Forests of the Middle Ages, the Law Reforms of the Commonwealth, the Genesis of the Admiralty Court, the Progress of the Law of Evidence, the Victorian Lord Chancellors and their influence on English Law, and the Inns of Court. Mr. Roscoe deals with his subjects in relation to contemporaneous political and social movements, and the student will find many useful pointers in these pages.
The Universal Mortgage Register and Property Register and Reminder. Manchester: John Heywood Limited.
THIS register furnishes a very simple and effective method of ensuring periodical reinspection of mortgage securities so as to prevent losses and liability for losses. It begins with an index to names of mortgagors, mortgagees, vendors, and purchasers, and as to the situation of properties. Then comes an index to dates when properties are due to be reinspected, with space for records of results. Finally, there is a register of particulars relating to properties mortgaged, sold, or purchased. All these are shown by marginal insets for instant reference.
The National Insurance Bill. By J. H. WATTS, Barrister-atlaw. Stevens and Sons.
In his very complete introduction to the text of this Bill Mr. Watts gives an excellent outline of its provisions and discusses their effect on doctors, chemists, clerks, women, hospitals, friendly societies, &c. He has also annotated the Bill itself.
The Student's Guide to Company Law, by Robert Wolstenholme Holland (Sir Isaac Pitman and Sons), is a manual for business men and advanced classes in schools, and will be welcomed by the busy practitioner as a simplification of a subject which is full of difficulties increased by technicalities. The elementary principles are set forth without dealing in detail with the Companies (Consolidation) Act 1908, reference being made only to decided cases in some few points.
The Legal Position of English Companies in Russia, by L. P. Rastorgoueff, Sworn Advocate of the High Court of Kharkoff, Russia, published by Jordan and Sons Limited, contains a Historical Sketch, chapters on the Development of Russian Industry by Foreigners and the Legal Position and
Conditions of Operation of Foreign Companies in Russia. There is an appendix containing the various Imperial Ukases and Treaties, and Extracts from Laws affecting English Companies in Russia. Mr. Rastorgoueff writes from a two years' experience in London, which have shown him the need for such a book as this.
Bankruptcy and Bills of Sale, by W. Valentine Ball, M.A. Barrister-at-law (Sir Isaac Pitman and Sons), has entered on a second and enlarged edition which includes all the recent statute and case law. The alphabetical arrangement renders it very handy for reference.
A third edition has been issued of Mr. Benjamin Whitehead's Church Law (Stevens and Sons). It is in the form of a concise dictionary of statutes, canons, regulations, and decided cases. The latest statutes and cases and the new Table of Ecclesiastical Fees approved by the Privy Council are included.
Messrs. N. Arthur Heywood and Arnold S. Massey, M.A., solicitors, have brought out a fourth edition of their well-known Lunacy Practice (Stevens and Sons), assisted by Mr. Ralph C. Romer, first class clerk in the office of the Masters in Lunacy. In addition to the provisions of the Act of 1908, some 200 decisions and a number of new precedents have been included. Mr. Ferrand A. Corley, of the Lunacy Taxing Office, has revised the Precedents of Bills of Costs and drafted the preliminary remarks on Taxations. The book has evidently been very carefully revised, and the fact that four editions have come out in eleven years is sufficient indication of its value and popularity.
From Mr. David Nutt comes a pamphlet by Mr. D. Owen Evans, entitled The Insurance Bill Made Clear, which the author calls a guide for the million. It is a well tabulated and readable résumé.
Mr. David Nutt publishes, under the title Working Women and Divorce, an account of evidence given on behalf of the Women's Co-operative Guild before the Royal Commission on Divorce. Evidence collected by such a guild, which is a working-class organisation composed exclusively of women, nearly all of whom are married, may be considered trustworthy, and should weigh with the commissioners. It emphasises the need for divorce being brought within the reach of the poorer classes, who at present are precluded on account of the expenses involved.
We have received the Current Index of Indian Cases 1910, Final Parts, Civil and Criminal, compiled at the Lawyer's Companion office, Trichinopoly, and published by T. A. Venkasawmy Row.
In An Elementary Account of the Declaration of London 1909 and Some Kindred Matters (Longmans, Green, and Co.) Mr. J. Pawley Bate provides information readily understood by the layman on a subject of great current interest.
We have received the July part of Mews' Digest of English Case Law (Stevens and Sons; Sweet and Maxwell), containing cases reported from the 1st Jan. to the 1st July.
Messrs. John Heywood Limited, of 121, Deansgate, Manchester, have issued a most useful Property Owners' Register, Record, and Reminder, which should appeal to owners of property, solicitors, estate agents, accountants, banks, insurance companies, building societies, &o. It is intended to enable persons interested in property to keep a separate record with regard to each of their properties, and as to where any leakagesļin revenue and capital are occurring, so that they may be in a position to check them.
The Law Magazine and Review for August (Jordan and Sons Limited) contains (inter alia): English Franchise Law, by R. L Marshall, M.A.'; Scarlett and His Methods, by J. A. Lovat-Fraser; The Place of Jurisprudence in Legal Education, by H. J. B. Martin, LL.B.; The Origin and History of Succession in Roman Law, by C. M. Brune, LL.D., de l'Université Laval à Québec; Teaching by Moots, by Hugh H. L. Bellot, M.A., D.C.L.; Obscene Literature and Constitutional Law in America, by J. Andrew Strahan. M.A., LL.B.; and Contemporary Foreign Literature, by James Williams, D.C. L., LL.D.