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ractically neglected, reformatory accommodation has been wasted, and cases that should have been sent to reformatories have been committed to prisons."

SECT. 1 enables a court to inflict reformatory detention on any inebriate who commits crime as the result of his habits, but sect. 2 is designed to permit the application of the Act to habitual drunkards who, without being actually criminal, are constant offenders against public decency and order. Under that section any habitual drunkard who is convicted of an offence mentioned in the first schedule to the Act, and who within the preceding twelve months has already been convicted three times for similar offences, may be sent to a reformatory by a petty sessional court if he consents to be dealt with summarily, but if he refuses such consent he must be sent for trial on indictment. During the eleven years that the Act has been in force only 2836 persons have been committed, and this is chiefly due to the cumbrous and dilatory procedure that is necessary, and the absence of any obligation upon any authority or person to establish reformatories, and of any definite instruction as to the share to be borne by the State and the local authorities respectively in the maintenance of these inebriates. It is clear, therefore, that, before any real progress is likely to be made in the treatment of the inebriate, more use must be made of the powers conferred by sect. 1, and the general machinery necessary for the carrying out of the principles of sect. 2 must be considerably amended.

SOME interesting details are given with reference to the 1031 persons who were committed to a reformatory for the three years 1907-1909. Of these cases, 865 were women and 166 men, but, as the inspector points out, the predominance in the number of women is explainable, the three most potent reasons being (1) the deficiency in institutional accommodation for men, (2) the reluctance on the part of magistrates to commit men, who are generally the breadwinners, and (3) the difference between the effect of alcoholic excess upon women and men. Of the cases committed, the greatest number of men were single and the greatest number of women married, while of the married women 58.6 per cent. were living apart from their husbands, and these 865 women were responsible for the birth of 2589 children-approximately three children per woman. Regarded as a remedy for habitual drunkenness, repeated confinement in prison is indefensible, and some other method of dealing with the habitual drunkard is imperatively necessary. Doubtless repeated imprisonment, if other influences could be excluded, has a beneficial rather than a detrimental effect upon the physical condition of these persons, but the ill effect upon the mental state is beyond question. The lack of success of our present system may be gauged from the fact that the 865 women committed for treatment during the past three years had previous convictions equal to an average of twenty-four per head.

USE OF ARMED FORCES TO QUELL RIOTS. Ar the present moment when trade is disorganised by the large number of men on strike, and violence and intimidation are indulged in, it may be of some interest to review the law relating to the employment of the armed forces of the Crown.

The right of officers or soldiers to interfere in quelling a felonious riot, whether with or without superior military orders, or the direction of a civil magistrate, is quite clear and beyond the possibility of doubt. This subject, however, was formerly little understood; and military men failed in their public duty through excess of caution. It was imagined also that the Riot Act, in allowing an hour for rioters to disperse before the capital penalty for rioting was incurred, suspended the right of interference with a mob, until after the expiration of the hour so allowed. But this was a gross_error. "In 1780," says Chief Justice Mansfield in Burdett v. Abbott (4 Taunt. 449), "this mistake extended to an alarming degree. Soldiers with arms in their hands stood by and saw felonies committed, and houses burnt and pulled down before their eyes by persons whom they might lawfully have put to death if they could not otherwise have

prevented, without interfering; some because they had no commanding officer to give them the command, and some because there was no justice of the peace with them. It is the more extraordinary because formerly the posse comitatus, which was the strength to prevent felonies, must, in a great proportion, have consisted of military tenants, who held land by the tenure of military service. If it is necessary for the purposes of preventing mischief, or for the execution of the law, it is not only the right of soldiers, but it is their duty, to exert themselves in assisting the execution of a legal process, or to prevent any crime or mischief being committed. It is therefore highly important that the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman."

In the celebrated trial of Brackley Kennett (5 C. & P. 282), Lord Mayor of London, who was indicted and convicted for breach of duty in not promptly quelling the great riots of London in 1780, by ordering the troops to clear the streets, Lord Mansfield said: "The common law and several statutes have invested justices of the peace with great powers to quell riots, because, if not suppressed, they tend to endanger the Constitution of the country; and, as they may assemble all the King's subjects, it is clear that they may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. It is well understood that magistrates may call in the military. It would be a strange doctrine, if in an insurrection rising to rebellion, every subject had not a power to act, when they possess the power in a case of a mere breach of the peace. By the Act of George I. [the Riot Act] a particular direction is given to every justice for his conduct; he is required to read the Act, and the consequences are explained. It is a step in terrorem and of gentleness; and it is not made a necessary step, as he may instantly repel force by force. If the insurgents are not doing any act, the reading of the proclamation operates as notice. There never was a riot without bystanders, who go off on reading the Act."

When George III. heard that the troops which had been marched in from all quarters in the riots of 1780 were of no avail in restoring order, on account of the scruples that they could not be ordered to fire till an hour after the Riot Act had been read, he called a Cabinet Council, at which he himself presided, and propounded for their consideration the legality of this opinion. There was much hesitation among the councillors, as they remembered the outcry that had been made by reason of some deaths from the interference of the military in Wilkes' riots, and the eagerness with which grand juries had found indictments for murder against those who had acted under the command of their superiors. At last the question was put to Attorney-General Wedderburn, who attended as assessor, and he gave a clear, unhesitating, and unqualified answer to the effect that if the mob were committing a felony, as by burning down dwelling-houses, and could not be prevented from doing so by other means, the military, according to the law of England, might and ought to be ordered to fire upon them; the reading of the Riot Act being wholly unnecessary and nugatory under such circumstances.

This eminent lawyer having become Chief Justice of the Court of Common Pleas, with the title of Lord Loughborough, delivered to a charge on the grand jury the special commission for the trial of the rioters of 1780, in the following terms (21 St. Tr. 485): "I take this public opportunity of mentioning a fatal mistake into which many persons have fallen. It has been imagined that because the law allows an hour for the dispersion of a mob to whom the Riot Act has been read by the magistrate, the better to support the civil authority, that during that time the civil power and the magistracy are disarmed, and the King's subjects, whose duty it is at all times to suppress riots, are to remain quiet and passive. No such meaning was within the view of the Legislature, nor does the operation of the Act warrant such effect. The civil magistrates are left in possession of all those powers which the law had given them before. If the mob collectively, or a part of it, or any individual within or before the expiration of that hour, attempts, or begins to perpetrate an outrage amounting to felony, to pull down a house, or by any other act to violate the law, it is the duty of all present, of whatever description they may be, to endeavour to stop the mischief and to apprehend the offender."

"A riot," says Mr. Justice Gaselee in Rex v. Fursey (6 C. & P. 81) "is not the less a riot, nor an illegal meeting the less an illegal meeting, because the proclamation of the Riot Act has not been read, the effect of that proclamation being to make the parties guilty of a capital offence if they do not disperse within an hour; but if that proclamation be not read, the common law offence remains, and it is a misdemeanour; and all magistrates, constables, and even private individuals, are justified in dispersing the offenders; and if they cannot otherwise succeed in doing so, they may use force."

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After the suppression of the great riots of London in 1780 by the aid of troops, the Government was attacked, both in and out of Parliament, on the ground that the employment of a military force, to quell riots by firing on the people, could only be justified, if at all, by martial law, proclaimed under a special exercise of the Royal prerogative; and it was thence argued that the nation was living under martial law. But Lord Mansfield, Chief Justice of the King's Bench, addressed the House of Lords on this subject as follows: "I hold that His Majesty, in the orders he issued by the advice of his Ministers, acted perfectly and strictly according to the common law of the land, and the principles of the Constitution. Every individual in his private capacity may lawfully interfere to suppress a riot, much more to prevent acts of felony, treason, and rebellion. Not only is he authorised to interfere for such a purpose,

but it is his duty to do so; and, if called upon by a magistrate, he is punishable in case of refusal. What any single individual may lawfully do for the prevention of crime and preservation of the public peace, may be done by any number assembled to perform their duty as good citizens. It is the peculiar business of all constables to apprehend rioters, to endeavour to disperse all unlawful assemblies, and, in case of resistance, tɔ attack, wound, nay kill, those who con. tinue to resist-taking care not to commit unnecessary violence, or to abuse the power legally vested in them. Everyone is justified in doing what is necessary for the faithful discharge of the daties annexed to his office, although he is doubly culpable if he wantonly commits an illegal act under the colour or pretext of law. The persons who assisted in the suppression of those tumults are to be considered mere private individuals acting as duty required. My Lords, we have not been living under martial law, but under that law which it has long been my sacred function to administer. For any violation of that law the offenders are amenable to our ordinary courts of justice, and may be tried before a jury of their countrymen. Supposing a soldier or any other military person who acted in the course of the late riots had exceeded the power with which he was invested, I have not a single doubt that he may be punished, not by a court-martial, but upon an indictment, and disposed of before the ermined judges sitting at the Old Bailey. Consequently the idea is false that we are living under a military Government, or that, since the commencement of the riots, any part of the laws or of the Constitution has been suspended or dispensed with. I believe that much mischief has arisen from a misconception of the Riot Act, which enacts that after proclamation made, persons present at a riotous assembly shall depart to their homes, and those who remain there above an hour afterwards shall be guilty of felouy. From this it has been imagined that the military cannot act, whatever crimes may be committed in their sight, till an hour after such proclamation has been made, or, as it is termed, the Riot Act is read.' But the Riot Act only introduces a new offence-remaining an hour after the proclamation-without qualifying any pre-existing law, or abridging the means which before existed for preventing or punishing crimes" : (Parl. Hist. xxi., 688-698).

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But notwithstanding the existence of a clear right and duty on the part of military men voluntarily to aid in the suppression of a riot, it would be the height of imprudence to intrude with military force, except upon the requisition of a magistrate, unless in those cases where the civil power is obviously overcome, or on the point of being overcome, by the rioters. With regard to the requisition of military aid by the civil magistrate, the rule seems to be that when once the magistrate has charged the military officer with the duty of suppressing a riot, the execution of that duty is wholly confided to the judgment and skill of the military officer, who thenceforward acts independently of the magistrate until the service required is fully performed. The magistrate cannot dictate to the officer the mode of executing the duty, and an officer would neglect his duty if he submitted to receive any such orders from the magistrate. Neither is it necessary for the magistrate to accompany the officer in the execution of his duty.

Mr. Justice Littledale in his charge to the jury, in the trial of the Mayor of Bristol for breach of duty in not suppressing the riots in that city in 1831, said (3 B. & Ad. 963): "Another charge against the defendant is. that upon being required to ride with Major Beckwith, he did not do so. In my opinion he was not bound to do so in point of law. I do not apprehend it to be the duty of a justice of the peace to ride along and charge with the military. A military officer may act without the authority of the magistrate if he chooses to take the responsibility; but although this is the strict law, there are few military men who will take upon themselves so to do except on the most pressing occasions. Where it is likely to be attended with a great destruction of life, a man, generally speaking, is unwilling to act without a magistrate's authority, but that authority need not be given by his presence. In this case the mayor did give his authority to act; the order has been read in evidence; and he was not bound in law to ride with the soldiere, more particularly on such an occasion as this, when his presence elsewhere might be required to give general directions. If he was bound to make one charge, he was bound to have made as many other charges as the soldiers made. It is not in evidence that the mayor was able to ride, or at least in the habit of doing sc; and to charge with soldiers, it is not only necessary to ride, but to ride in the same manner as they do; otherwise it probable that the person would soon be unhorsed, and would do more harm than good; besides that, if the mob were disposed to resist, a man who appeared in plain clothes leading the military would be soon selected and destroyed. I do not apprehend that it is any part of the duty of a person who has to give general directions to expose himself to all kinds of personal danger. The general commanding an army does not ordinarily do so, and I can see no reason why a magistrate should. A case may be conceived where it might be prudent, but here no necessity for it has been shown."

This subject was also luminously expounded by Lord Chief Justice Tindal in his charge to the grand jury on the special commission held at Bristol on the 2nd Jan. 1832, for the trial of parties implicated in the formidable riots and devastations committed in that city during the autumn of the previous year (5 C. & P. 261, note): "It has been well said that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property; and although every single act of violence, and each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risinge and tumultuous meetings of the people in a more especial and

particular manner produce this effect, not only removing all security both from the persons and property of men, but for the time putting down the law itself, and daring to usurp its place. In the

first place, by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall Bee coming up from joining the rest; and not only has he the authority, but it is his bounden duty, as a good subject of the King, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evildoers to keep the peace. Such was the opinion of all the judges of England in the time of Queen Elizabeth, in a case called The Case of Arms' (Popham's Reports, p. 121), although the judges add, that it would be more discreet for everyone in such a case to attend and be assistant to the justices, sheriffs, or other Ministers of the King in doing this.' It would, undoubtedly, be more advisable so to do; for the presence and authority of the magistrate would restrain the proceeding to such extremities, until the danger was sufficiently immediate, or until some felony was either committed or could not be prevented without recourse to arms; and at all events the assistance given by men who act in subordination to, and in concert with, the civil magistrate will be more effectual to attain the object proposed, than any efforts, however well intended, of separate and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law."


WE now pass to the important division of law covered by the term COMPANIES. The affairs of a well-known pleasure resort led to the interesting decision of the Court of Appeal in Re Crystal Palace Company; Fox v. Crystal Palace Company (130 L. T. Jour. 622; (1911) W. N. 104), and it shows that a company established for purposes such as those of this institution, and requiring no statutory powers, but contemplating a dissolution, would not necessarily fall within a class of undertakings in which the public had rights. Such a company could close down at any time, and debenture-holders, possessing a charge on its property, the security being, moreover, quite insufficient, were entitled to an order for sale. Another point, upon which there has been some little doubt, was decided by Mr. Justice Joyce in Re Lindner and Co. (1911) W. N. 66), to the effect that a company carrying on business abroad (in this case chiefly in France and Spain) is not entitled as a general practice to any indulgence in the matter of dispensing with the use of the words "and reduced" when the court has sanctioned a reduction of capital by the cancellation of lost capital. The effect of a default to send to the registrar a list of members was raised in Park v. Lawton (104 L. T. Rep. 184; (1911) 1 K. B. 588). There had also been no general meeting of the company in one year, and the company and the respondent directors were in default in this respect. The section of the Companies (Consolidation) Act 1908 concerned with the list of members is sect. 26. The respondents contended that, as no general meeting had been held in that year, it was impossible to make up the list required by sect. 26, and that they could not be convicted of a default for omitting to do the impossible, and this view found acceptance before the justices for Hertfordshire. The Divisional Court happily saw its way to disagree, and to hold that it was no defence to argue that a person may plead his own default as an answer to a charge as to an offence. Another case of directors' negligence in the execution of their duty, though in very different attendant circumstances, may be cited in Re Brazilian Rubber Plantations and Estates Limited (103 L. T. Rep. 697; (1911), 1 Ch. 425). This was one of those cases where honest men had been duped by knaves, and a prospectus was issued setting out imaginative features. This document was false, but the directors believed it, and were so sanguine that, even when a manager sent out to Brazil advised them as to the falsity of the statements, they nevertheless went on and completed the purchase. Certain articles of association provided that a director should not be liable for losses due to errors of judgment, or oversight, or misfortune in the execution of his duties, unless the same happened through his own dishonesty. The inevitable crash came, and the liquidator claimed damages against the directors for gross negligence in entering into the contract without proper examination, and in not repudiating it on the false statements being discovered Mr. Justice Neville observed that he had to consider the extent of a director's duty. He held that he was not bound to bring any special qualification with him, and could undertake the management of a rubber com pany in complete ignorance of rubber matters, nor is he bound to take any definite part in the conduct of a company's business, but, so far as he does undertake, reasonable care in its dispatch is necessary. The standard seems to be that sare which an ordinary


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man might be expected to take in the same circumstances on his own behalf. The learned judge came to the conclusion that the directors were not very negligent in believing that the contract was beneficial, and there was no negligence in carrying on the business after the contract became binding. On the construction of the article already mentioned, Mr. Justice Neville did not think it illegal for a company to engage directors on such terms, and he did not think that an action by the company against its directors for negligence, no dishonesty being shown, could have succeeded. It seems rather unfortunate that the proposed appeal should not have been proceeded with, for the case would appear to encourage laxity in the acceptance of statements made by persons having an interest in the formation of companies. Re Spanish Prospecting Company (103 L. T. Rep. 609; (1911) 1 Ch. 92) raised another point of interest to directors who are entitled to salaries, which they were not to draw "except only out of profits (if any) arising from the business of the company." Here a company was in difficulties. Part of its business was to buy and sell shares for cash, the proceeds going into a profit-and-loss account. Certain debentures in another company were acquired and included in the balancesheet as an unvalued asset. The original company being in voluntary liquidation, the debentures and other assets were disposed of, the former realising about £3000. All creditors, other than two directors, were paid in full, and all the capital subscribed was repaid to the shareholders. A surplus of some £3300 was in the liquidator's hands, and about £8000 was due to the directors in respect of arrears of salary. Mr. Justice Swinfen Eady thought that there had been no "profit" in the carrying on of the company, and no part of the arrears of salary could be claimed by the directors out of the surplus assets. The Court of Appeal reversed this, and held that the entire proceeds of the liquidator's realisations should be treated as undrawn profits. Lord Justice Fletcher Moulton defined "profits" as the increase at the later of two dates shown by a comparison of the total assets of a business, due allowance being made for capital put in or taken out meanwhile. It would be impossible to reproduce verbatim this learned judge's disquisition on profits," but no future case could well be advised on where anything turns on this term without the practitioner studying with care this judicial explanation of a word in current use with a somewhat ambiguous meaning. East v. Bennett Brothers Limited (103 L. T. Rep. 826; (1911) 1 Ch. 163) was a most extraordinary case, for the plaintiff moved against a company, in an action on behalf of himself and other preference shareholders, for rectification of the register by the removal there from of the names of those shareholders. The memorandum allowed for an increase of capital, but no new preference shares were to be issued unless sanctioned by an extraordinary resolution of the holders of the existing preference shares present at a separate "meeting." This extra issue of preference shares was made, and at that time B.! held all the original shares. B. presided at the "meeting" called, moved the resolution, and signed a document in the minute-book recording his assent. It was now argued that these later shares were not valid, and that there could not be a "meeting" of one shareholder. The distinction must be noted that it was not a question as to only one shareholder out of many attending, but it was a case of there only being one shareholder, so that "meeting"-if defined as an assembly-would be impossible. Mr. Justice Warrington thought that common sense compelled him to hold that in such a case one shareholder may hold a "meeting"; that the shares were validly issued, and no necessity arose for rectifying the register. The principle that an agent cannot share a profit without his principal's consent has been applied to company matters in Re London and South-Western Canal Limited (104 L. T. Rep. 95; (1911) 1 Ch. 346), where the main object was to buy the derelict Basingstoke Canal. The directors accepted and held their qualificatory shares in trust for the promoter, to whom they handed blank transfers. No consideration was paid for the shares, and, the company soon coming to grief, the liquidator claimed from each director, for misfeasance in thus accepting shares. Mr. Justice Swinfen Eady held that it is not only improper, but a misfeasance, to qualify by taking shares in trust for the promoter, for directors merely hold office at his will and so long as they please him, and, should they displease him, he can fill up and lodge the blank transfers, and so disqualify them. The possibilities latent in such circumstances were manifested in the case, for the promoter, having bought the property for £500, within three months contracted to sell it for £88,000. Re South of England Natural Gas and Petroleum Company Limited (104 L. T. Rep. 378; (1911) 1 Ch. 573) decides a very practical point of law upon which some doubts have been entertained. Executors of a deceased shareholder asked for rectification of the register by the omission of their testator's name. The reason alleged was that the latter had applied for shares on the faith of a prospectus which failed to comply with sect. 81 (a) of the Companies (Consolidation) Act 1908, in that it was a second offer for shares not stating the amount offered for subscription and allotted on the first offer. It was argued that it was not a second offer, inasmuch as the first prospectus was indorsed 'for private circulation only" and was issued to a few shareholders in a limited number of gas companies. This explanation failed to satisfy Mr. Justice Swinfen Eady, who deemed it notwithstanding an offer to the public. The remedy of the shareholder, however, is not rescission and a claim for a return of the money paid, but an action for damages against the directors and other persons responsible for the prospectus.

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At a time when the subject of COPYRIGHT has been so much canvassed in Parliamentary circles, it may be specially useful to draw attention shortly to two cases, one dealing with photographs and the other with pictures. Bowden Brothers v. Amalgamated Pictorials Limited (103 L. T. Rep. 829; (1911) 1 Ch. 386) arose out of the plaintiffs withdrawing a permission to the defendants to reproduce photographs (which it was their business to supply to the Press) in Lotinga's Weekly or the Throne. Plaintiffs had regis tered copyright in twenty-nine photos in the defendants' possession, and these had been reproduced by the defendants after permission to use them had been withdrawn, and the defendants claimed the right to reproduce photographs of the plaintiffs in respect of which there was no registered copyright. Mr. Justice Parker held that he had to determine the effect of the contract between the parties. The learned judge decided that the plaintiffs had revoked all open offers, and that the defendants could not, without their permission, use photos already s plied; and, further, that the plaintiffs were entitled to an injunct. n restraining the infringement not only of statutory copyright, but also of common law rights. Carlton Illustrators v. Coleman and Co. Limited (104 L. T. Rep. 413; (1911) 1 K. B. 771) was a case of some complexity, but it will be sufficient for our purposes to state that the plaintiffs were a firma. selling illustrations for advertisers and the defendants were the sellers of Wincarnis. The plaintiffs contracted to supply the. picture known as "Caution," but the agreement had no stipulation as to copyright. The picture was duly handed over to the defendants. The defendants then circulated posters, not in fine line drawing, but with colours and alterations, without the plaintiffs' consent, and still printed on the same the name of the original artist, thereby ascribing to him the work as altered. Mr. Justice Channell held that this might be damaging to an artist's reputation, and that the defendants by so doing had committed a breach of the Fine Arts Copyright Act 1862, s. 7 (4), and that this act could be restrained by injunction. In order to constitute an "alteration" within that section, the same must be material. To bring the case within the mischief of the Act it is not essential that the sale or publication should be fraudulent; it is enough if the sale or publication of the altered work as and for its original. is made knowingly.


One or two important decisions on the meaning of certain COVENANTS should be briefly summarised. Watling v. Lewis (104 L. T. Rep. 132; (1911) 1 Ch. 414) was a case where the plaintiff sought a declaration that the defendants were jointly and severally liable to repay certain moneys under a mortgage, and for a joint and several judgment against them. The plaintiff was the trustee of the will of P. L., and the defendants were trustees of the will of H. L. P. L. and H. L. had been partners, and wereentitled to land in Wales, which they had mortgaged. After their deaths disputes arose between the sets of trustees as to P. L.'s share, and these were eventually settled, and a deed entered into for the purpose, under which the plaintiff as trustee released unto the defendants P. L.'s share in the mortgaged premises, and the defendants as such trustees, but not so as to create any personal liability on the part of them or either of them," jointly and severally covenanted to pay the mortgage debt and indemnify the plaintiff. Mr. Justice Warrington held that the effect of the proviso in the covenant, if valid, would be not merely to limit, but, to destroy personal liability on the defendants' part, and that, as there was a covenant to pay and indemnify, such a proviso was, repugnant and without effect; and therefore the defendants were held liable, just as if the proviso were non-existent. Napier v. Williams (104 L. T. Rep. 380; (1911) 1 Ch. 361) was heard by the same learned judge. There the facts showed a covenantor covenanting with himself and another jointly, and not jointly and severally. The same was in a lease. Mr. Justice Warrington. refused to allow a rectification so that the covenant could be joint and several, the form being as the parties intended and the defect one due to a mistake as to its legal operation. The learned judge held that, at law, the effect of a covenant by one with himself that no legal obligation is created on the part of the covenantor. This merely repeats a recent decision, and indicates that this point is to be treated as fairly settled. As regards the contention that nevertheless the provisions are a burden on the land and capable of binding assignees, Mr. Justice Warrington held that neither at law nor in equity could these covenants be enforced by action. Ramoneur Company Limited v. Brixey (104 L. T. Rep. 809) was a covenant in restraint of trade, and it shows that an agreement not to carry on "or be concerned in carrying on" business is not infringed by engagement in a capacity as journey


man or mere servant.

The relationship of DONOR AND DONEE was considered in a remarkable case before the Court of Appeal in Re Coomber; Coomber v. Coomber (104 L. T. Rep. 517; (1911) 1 Ch. 723). C. was entitled at his death to a long lease of certain premises, and by his will he left all his property to his wife, but to her he had intimated a wish that H. C. should have the business and the leaseholds on which it was conducted. Mrs. C. subsequently assigned the goodwill of the business and the lease to H. C., no consideration being mentioned in the deed, which was prepared by Mrs. C.'s solicitor. When Mrs. C. died, the plaintiff (another son) claimed that H. C. held the business and the lease as trustee for the persons interested as residuary legatees under Mrs. C.'s will, and the claim was based on the ground that H. C. stood in a fiduciary relationship. Mr. Justice Neville held that the gift was

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due to Mrs. C.'s affection for her son, and dismissed the action. On appeal, the Court of Appeal also dismissed the case, but they went further into some useful dicta. It is not true to say that any confidential relation between donor and donee is sufficient to set up a presumption against a gift, although there are certain relationships in which there is such a presumption-e.g., that subsisting between solicitor and client, or a young person just twenty-one who makes a gift to a parent or a person standing in loco parentis. At the same time, if H. C. could have been shown to have put before the testator any inaccuracy of account, the Master of the Rolls showed that he would have been alert to have intervened on the general ground that a principal would never be safe if an agent could take a gift from him on a representation that was not most accurate and precise. Lord Justice Fletcher Moulton says something of interest as to the meaning of independent advice." It is not needful that a solicitor should actually say, "I advise you to do this or that." In the learned Lord Justice's view such is not necessary for the purpose of advice. He continues: "I think that a solicitor best gives advice when he takes care that the client understands fully the nature of the act and the consequences of the act. He is not bound to say, 'I will advise you to do it,' or 'If I were you I would do it,' or 'If I were you I would not do it.' Nothing of that kind is necessary for competent and independent advice." Lord Justice Buckley found nothing to warrant an inference of undue influence or concealed knowledge, and on this ground would dispose of the appeal. (To be continued.)

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THE amounts advanced for land purchase in Ireland under the different Acts up to the 31st March 1911 were as follows: Act of 1870. £518,933; Act of 1881, £240,801: Acts of 1885-8, £9,992,536; Aots of 1891-6, £13,145,817; Acts of 1903-9 (by the Estates Commissioners), £41,301,213; by the Land Commissioners (other than the Estates Commissioners), £1,364,794; Labourers (Ireland) Act 1906, £3,111,816. The total was £69,675,910. On the same date the amount applied for but not yet advanced was £47,618,544, of which £46,387,249 was applied for to the Estates Commissioners, £93,111 to the Land Commission, and £1,138,184 in respect of the Labourers (Ireland) Act 1906. Up to the date in question, therefore, land purchase iu Ireland has involved the spending of the huge sum of £117,294,454. It is probable that the whole process before it is complete will require £200,000,000, and possibly more.

ACCORDING to the report of the Commissioner of Police, the number of indictable offences committed within the Dublin police district in 1910 was sixty-one fewer than in 1909, being 3408 in that year and 3347 last year. In respect of the 3347 crimes committed, the number of persons made amenable was 1688, and the number of persons convicted 928. Most of these crimes-namely, 2769-were "offences against property without violence." There was an increase of 281 in the number of non-indictable offences-namely, 32,194 in 1910 and 31,913 in 1909. The total number of orders made by magistrates in quasi-criminal matters was 13,567, of which 10,373 were orders for possession of small tenements, 1625 were orders in respect of the sanitary law, and 1293 were with reference to children. It is satisfactory to know that of the 5507 males summarily convicted during the year, only ninety-five could read and write well and only eighteen were of "superior education." In regard to the 4290 females summarily convicted, thirty-eight could read and write well and only two were of "superior education."

THE details in the Dublin report as to the consumption of intoxicating liquors are interesting. During the year 149 publicans, spirit grocers, and beer dealers were prosecuted as compared with 183 in 1909. The result was that fifty-one of these cases were dismissed with a caution and twenty-one without a caution, and convictions took place in seventy-seven cases. In one case only was the conviction directed to be recorded on the licence. The charges of drunkenness not combined with other offences numbered 2462 (namely, 1483 males and 979 females) against 2445 (namely, 1550 males and 895 females) in 1909, and 2889 (1834 males and 1055 females) in 1908. The number arrested for being drunk and disorderly was 1109 (542 males and 567 females) against 943 in 1909 and 1098 in 1908. The number arrested for drunkenness combined with offences other than disorderly conduct was ninety-five against 125 in 1909 and eighty seven in 1908. The total number of persons who were drunk when arrested by the police was 3258 against 3601 in 1909 and 4198 in 1908. Seventy-nine applications for new, renewal, or transfer licences were opposed by the police at licensing sessions. Fifty-five were granted and twenty-four refused. The number of persons previously convicted of drunkenness three times and upwards was 114.

THE Resident Magistrates (Belfast) Bill, which Mr. Birrell has introduced, proposes to effect a change with reference to the stipendiary magistracy in Belfast which is urgently called for. In Dublin summary jurisdiction is exercised by four divisional police magistrates, and the ordinary unpaid magistrates have no petty sessional

jurisdiction whatsoever. In Belfast this class of business is performed by the ordinary magistrates, assisted by two paid resident magistrates, who preside in the police-court and the summons court respectively. Of late years petty sessional business has increased enor mously in Belfast, and it is necessary to place the resident magistracy there on a more satisfactory basis. The resident magistrates in Ireland consist of three grades whose salaries respectively are £475, £550, and £675 yearly, with an annual allowance in each case of £100 for travelling expenses. It is felt that the remuneration which is paid to resident magistrates of even the highest grade is a very inadequate return for the onerous duties performed in Belfast. Accordingly it is proposed in the Bill now before Parliament that the Corporation of Belfast shall pay to each of the resident magistrates a sum of £200 yearly by way of addition to their ordinary salary. The Bill contains a provision that this additional salary is not to be reckoned as part of the resident magistrates' annual salary for the purposes of the Superannuation Acts 1834 to 1909. It is provided, further, that no person shall be appointed to be a resident magistrate in Belfast who is not a practising barrister or solicitor of not less than six years' standing or a resident magistrate. This provision is entirely illusory, because a person who is not a lawyer at all may be appointed an ordinary resident magistrate, and three or four months afterwards may be appointed a resident magistrate in Belfast. The Bill should provide that if a resident magistrate is appointed to Belfast he should be a person who at the time of his original appointment was a solicitor or barrister of at least six years' standing,

MR. JUSTICE DODD delivered a judgment of considerable interest to stock. brokers in a case tried by him at the recent Belfast Assizes (Henderson and another v. Martin). The plaintiffs were stockbrokers carrying on business in Belfast, and the defendant was a customer of theirs. The action was one to recover the amount of a balance due by the defendant in respect of money advanced by the plaintiffs for various stocks and shares purchased for the defendant on the Glasgow and London Stock Exchanges. The plaintiffs employed agents at a fixed rate of commission to deal for them in Glasgow and London. The plaintiffs in buying and selling for the defendant charged him s net price, which included the price paid on the Glasgow or London Stock Exchange with the addition of the agents' commission. They also charged the defendant their own commission. defendant knew that the plaintiffs employed such agents, but did not know on what terms they were employed. It was held that the plaintiffs were entitled to recover the actual price paid, together with their own commission, but not the commission payable by the plaintiffs to their agents.

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AN important point has been raised in Parliament with reference to the estate duty payable in the case of the farms of deceased tenanta who had signed agreements to purchase their farms under the Land Purchase Acts before the date of their death. It was decided by Mr. Justice Barton in Lynder's Estate (1910, 2 Ir. Rep. 231) that the signing of an agreement under the Land Purchase Acts does not determine the tenancy, but leaves the purchaser still in law the tenant of the holding until the land is vested in him by the Land Commission. It appears that the Commissioners of Inland Revenue are valuing the farms of deceased farmers who had before their death signed agreements to purchase, but who had not had their farme vested in them, on the basis of purchased farms, instead of being valued in accordance with sect. 61 (1) of the Finance Act 1910. It is stated that the commissioners under such circumstances declined to give the representatives of the deceased farmer the benefits of sect. 61 (3), relating to the payment of duty by instalments, owing to the vesting order not having been made and the purchase completed. It would appear, therefore, that the Inland Revenue authorities have it both ways. It appears that the commissioners take the view that a farmer who has signed an agreement to purchase, although he remains the legal tenant, is nevertheless in addition equitable owner of the fee subject to the tenancy. The authorities regard him as the real beneficial owner, and it is contended that such a case does not fall within sect. 61 (1), but that the benefits given by sect. 61 (3) apply.


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THE stringent provisions of sect. 2 of the Moneylenders Act 1900 (63 & 64 Vict. c. 51), as to the registration of moneylenders, essential to the adequate protection of those who are unlucky enough to fall into the clutches of such persons that no of ascertaining whether the statutory provisions have been complied with ought to be denied to borrowers. It is highly satisfactory; therefore, that two at least of the learned judges of the Court of Appeal agreed in thinking that Mr. Justice Jovce was wrong in the view which he took in the recent case of Nash v. Layton (104 L. T. Rep. 834). The Master of the Rolls (Cozens-Hardy) and Lord Justice Buckley were of opinion that the interrogatories which the learned dants were properly admissible. Lord Justice Fletcher Moulton, on the other hand, considered that Mr. Justice Joyce had pronounced a right decision. The interrogatories aimed at discovering whether the plaintiff was carrying on the business of a "moneylender." For, as appears from our report, he sought to enforce against the defendants



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other defences to the action, it was pleaded that the plaintiff was, at the date of the alleged charge, a moneylender within the meaning of the Act of 1900 and was not registered as a moneylender under that Act; and that by reason thereof his alleged charge was illegal and could not be enforced. It will be remembered that, by sect. 2 of the Aot, a moneylender as defined by the Act is required to "register himself as a moneylender in accordance with the regulations under this Act," and to carry on the moneylending business in his regis. tered name." The Act contains no express definition of " carry on the moneylending business." The only statutory definition that there is appears in sect. 6. It is thereby enacted that the expression moneylender" shall include every person whose business is that of moneylending, or who advertises or announces himself or holds himself out in any way as carrying on that business, with certain specified exceptions. In the present case. the plaintiff was a tailor by trade. But that would not prevent him from also being a moneylender, as it is by no means unheard of for persons engaged in the plaintiff's occupation, while accommodating their customers with wearing apparel on credit, to oblige them likewise with pecuniary assistance by way of loans. What the defendants, therefore, desired by their interrogatories was the disclosure of whether the plaintiff came within the statutory definition-a fact which, they contended, was material to an issue in the action, and consequently rendered the interrogatories admissible on the principles enunciated in the famous case of Marriott v. Chamberlain (54 L. T. Rep. 714; 17 Q. B. Div. 154). In the opinion of the majority of the learned judges of the Court of Appeal, the defendants' interrogatories contained questions that were substantially relevant to the existence or non-existence of a fact directly in issue, applying what was said by Lord Esher, M.R. in that case. At p. 163 of 17 Q. B. Div. his Lordship observed: "The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or nonexistence of the facts directly in issue." In 8 sentence immediately preceding that passage, however, the learned judge had negatived the right "to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves." And that sentence was laid hold of by the plaintiff's counsel in Nash 7. Layton (ubi sup.) as being precisely in point in that case. interrogatories, they argued, related merely to evidence of the fact whether the plaintiff was carrying on the business of a moneylender. That argument appeared to Lord Justice Fletcher Moulton to be well founded. His Lordship regarded the interrogatories as directed to evidence of one of the issues of fact, and evidence only. On that ground they were, he held, inadmissible, as being exactly covered by what was said by Lord Esher, M.R. in Marriott v. Chamberlain (ubi sup.)-an authority which he styled the locus classicus on the question of interrogatories. But the later passage from the same judgment which was relied upon as applicable by the other learned judges is equally pertinent, even though it be read subject to what was said by Lord Herschell, L.C. in Kennedy v. Dodson (72 L. T. Rep. 172, at p. 174; (1895) 1 Ch. 334, at p. 338), "that interrogatories, unless strictly relevant to the question at issue in the action, ought to be rigorously excluded." At any rate, the decision of the majority accords with the old rule that a party has a right to interrogate in order to obtain admissions which will make it unnecessary for him to enter into evidence of the facts admitted: (see Attorney-General v. Gaskill, 46 L. T. Rep. 180; 20 Ch. Div. 519). And how to do so effectively in a moneylending action will be gathered from the very useful precedent that is comprised in the forder drawn up in Nash v. Layton (ubi sup.), and which is appended to our report of that case.



THE authorities as to how far a person is bound by a deed which he has executed through fraud or misrepresentation, as against innocent third parties, do not seem to be in a very satisfactory state. In Sheppard's Touchstone, vol. 1, p. 56, 7th edit., the law is thus stated: "So if the party that is to seal the deed can read himself and doth not, or being an illiterate or a blind man doth not require to hear the deed read, or the contents thereof declared, in these cases, albeit the deed be contrary to his mind, yet it is good and unavoidable at law. On this subject read Manser's case (2 Coke's Reports, 3)." One of the earliest cases on the point is that of Foster v. Mackinnon (20 L. T. Rep. 887; L. Rep. 4 C. P. 704). There the defendant was induced to put his name upon the back of a bill of exchange by the fraudulent representation of the acceptor that he was signing a guarantee. In an action against him by a bona fide holder for value, the jury were directed that if the signature of the defendant was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it without knowing that it was a bill, and in the belief that it was a guarantee, and if he was not guilty of any negligence in so signing, he was entitled to the verdict. The jury returned a verdict for the defendant; and upon a rule being obtained for a new trial on the ground of misdirection, it was held that it was a proper direction. Mr. Justice Byles in the course of his judgment said: "It seems plain on principle, and on authority, that a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract read over to him, the reader misreading to euch a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate afterwards signs; then, at least if there be no negli.

gence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exista, but on the ground that the mind of the signer did not accompany the signature; in other words, he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended." The same principle was followed in Lewis v. Clay (77 L. T. Rep. 653). There a person had been induced to sign a promissory note by a fraudulent representation that he was witnessing a deed, and at the time he signed it he believed he was witnessing a deed, and had no knowledge of the existence of a promissory note. The jury negatived negligence upon his part in so signing the document, and it was held in an action brought against him upon the note that he was not prevented from relying upon the true faots as a defence, and that such facts afforded an answer to the action.

Again, in the recent case of Carlisle and Cumberland Banking Company v. Bragg (104 L. T. Rep. 121; (1911) I K. B. 489), the facts were shortly as follows: The defendant signed a document which purported to be a continuing guarantee by him up to the amount of £150 of the payment by R. to the plaintiffs of any sum which might at any time hereafter be or become due from R. to the plaintiffs on the general balance of his banking account with them. The defendant had been induced by the fraud of R. to sign the document without reading it, and not knowing that it was a guarantee, but believing it to be some insurance paper. R. subsequently forged the signature of an attesting witness to the document and handed it to the plaintiffs. The questions left by Mr. Justice Pickford to the jury and their answers thereto were as follows: (1) Was the defendant induced to sign the guarantee by the fraud of R. ?-Yes. (2) Did the defendant know that the document which he signed was a guarantee ?—No. (3) Was the defendant negligent_in_signing the guarantee?—Yes. (4) Was R. the agent of the bank?-No. Upon those findings the judge gave judgment for the defendant, and upon an application by the plaintiffs for judgment, or a new trial, the Court of Appeal affirmed the decision of Mr. Justice Pickford. Lord Justice Buckley in the course of his judgment said: "In general, the proposition is true that if a man, acquainting himself with the contents of a deed, by ear, and being told by another what it contains, receives false information as to its contents in a material respect, that is not his deed. As regards the plea of non est factum, that is this case, for the jury have found that the defendant was induced to sign this guarantee by R.'s fraud, not knowing that it was a guarantee, so that he was defrauded by the person who brought it to him, and did not know what it was. It seems to me that under those circumstances it was not his contract. I do not think myself that cases of this kind are to be confined to the blind and illiterate. It seems to me that the same doctrine applies to every person who is so placed as that he is incapable by the use of such means as are open to him of ascertaining, or is by false information deceived in a material respect as to the contents of the document which he is asked to sign." It is submitted that the foregoing decisions are illustrations of the cases in which the plea of non est factum has prevailed.

But the following are cases in which that plea has failed and the parties executing deeds have been held bound by them, even though such execution was obtained by fraud. In Hunter v. Walters (25 L. T. Rep. 765; 7 Ch. App. 75) the facts were very shortly as follows: The solicitor of two mortgagees put up the mortgaged estate for sale by auction without any authority. He professed to have bought the estate, and prepared a conveyance to himself from the second mortgagee under his power of sale. Both the mortgagees executed the conveyance, and also signed indorsed receipts for money as paid to them, though no money was in fact paid to them. The solicitor took possession of the estate and continued to pay the interest to the mortgagees, and afterwards made an equitable mortgage of the estate, representing himself to be the absolute owner thereof. The first mortgagee deposed that he understood that his mortgage was not to be paid off, and that he had signed the deed at the solicitor's request, who stated that it was a mere form, and had been executed by the second mortgagee, and that he, the first mortgagee, never read the deed, and that he believed that the deed merely transferred the interest of the mortgagor to the solicitor, leaving the security as it was before. There was no evidence as to the manner in which the second mortgagee was induced to execute the deed, but it was proved that he had great confidence in the solicitor, and was in the habit of executing deeds brought to him by the solicitor for execution. Held, by the Court of Appeal, affirming the degree of Vice-Chancellor Malins, that under the circumstances the equitable mortgagee had priority over the second mortgagee. In the course of his judgment Lord Hatherley, L.C. said: "I apprehend that if a man executes a solemn instrument by which he conveys an interest, and if he signs on the back a receipt for money-a document which, as the ViceChancellor observes, could not be mistaken-he cannot affect not to know what he was doing, and it is not enough for him afterwards to say that he thought it was only a form. That merely amounts to saying that a misrepresentation was made to him under which he executed a deed; still the deed may have been exactly what he intended to execute, though he intended it to be used for a totally different purpose, but this does not affect the deed. The fraud of the person who used the deed for a different purpose does not make it less the deed of the person who executed it." Lord Justice James in the course of his judgment said: "To my mind it is almost ludicrous to contend and it would be most injurious to hold that a man executing a deed, and signing a receipt as a matter of form, should be able to say that it is a nullity. Many young men put their

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