« EelmineJätka »
on the faith of a restrictive covenant against the sale of fresh meat other than pork at No. 137, thus saw in Dec. 1909 a general butcher's business opened at No. 137 in competition with him by the son of his vendor, and then brought this action. Scrutton, J. held that, by the restrictive covenant entered into by the vendor, the purchaser had acquired an equitable negative easement in the vendor's leasehold interest in No. 137; that the vendor could not defeat that interest by surrendering the lease; and that the vendor's son, notwithstanding the surrender of the old lease and the grant of the new lease to him, was equally bound by the restrictive covenant, and liable to the purchaser for breach thereof; and, further, that the vendor was liable for breaches of the other covenants. The defendant G. S. appealed. Held, that the law had been correctly laid down in Ashburner's Principles of Equity, to the effect that a purchaser for valuable consideration without notice could give a good title to a purchaser from him with notice. Appeal allowed.
[Wilkes v. Spooner and another. Ct. of App.: Vaugnan Williams, Fletcher Moulton, and Farwell, L JJ. May 1.-Counsel: for the appellant, Cave, K.C. and Stephen Lynch: for the respondent, Arthur Powell, K.C. and Hugo Marshall. Solicitors: for the appellant. Mitchell, Lucas, and Mitchell; for the respondent, James Banks Pitman.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Company-Powers of Directors-Control of Company in General Meeting -Articles of Association-Appointment of Managing Director-Construction.-By art. 99 of the articles of association of a limited company the directors were empowered to appoint one of their body to be managing director of the company. By art. 113 the business of the company was to be managed by the directors, who might exercise all such powers and do all such things as might be exercised or done by the company, and were not by the statutes or those articles directed or required to be exercised or done by the company in general meeting, subject to the provisions of the statutes, and the articles, and to such regulations as might be from time to time prescribed by the company in general meeting. At an extraordinary general meeting of the company held on the 30th March 1911 a resolution was passed that the then managing director, L., whose term of office was expiring, should be reappointed managing director. Notwithstanding this resolution, the directors by resolution on the 7th April 1911 appointed another director, S., to be the managing director in the place of L. at the end of his term. An action having been brought in the name of the company against the directors who passed the resolution to have it declared invalid and to restrain them from acting upon it, it was held on motion for an interim injunction that the proviso in art. 113 making the powers of the directors subject to the regulations prescribed by the company in general meeting did not apply to the special power conferred upon them by art. 99, and that the appointment by the directors of S. as managing director was valid and binding.
[Thomas Logan Limited v. Davis. Ch. Div.: Warrington, J. May 5.-Counsel: H. Terrell, K.C. and H. Maddocks; Cave, K.C. and Maugham; G. E. Tyrrell. Solicitors: Maddocks and Colson, for Maddocks, Ogden, and Co., Coventry; Rawle, Johnstone, and Co., for Wright, Hassall, and Co., Leamington; H. Tyrrell and Son, for C. H. Passman, Leamington.]
Declaratory Judgment—Action for, against Attorney-General-Finance (1909-10) Act 1910 (10 Edw. 7, c 8), 8. 31-Commissioners of Inland Revenue-Form 8-Order XXV., r. 5.-B., & collector of rents and, in particular, as agent for the owner of the rent payable in respect of certain land in the borough of W. H., received from the Commissioners of Inland Revenue a notice, known as Form 8, requiring certain information for the purpose of the valuation of land prescribed by the Finance (1909-10) Act 1910. The plaintiff did not fill up and return this form within thirty days from the date of the notice and received a further document, Form 14— Land. He did not comply with the request contained in that document, and on the 25th Oct. issued his writ in this action claiming a declaration under Order XXV., r. 5, that the notice was illegal, unauthorised, and ultra vires, and that he was not under any obligation to comply with it. Five grounds were raised by the plaintiff in support of this contention. Held, (1) that on three of these grounds the notice was unauthorised; (2) that, following the decision in Dyson v. Attorney-General (103 L. T. Rep. 707; (1911) 1 K. B. 410), the plaintiffs action was properly constituted as to parties, and the court had jurisdiction to make the order; and (3) that the case was one in which the discretion of the court should be exercised in the plaintiff's favour, and that it should be declared that the notice in the statement of claim mentioned was unauthorised, and that the paintiff was not, and is not, under any obligation to comply with the requisitions contained therein or any of them.
[Burghes v. Attorney-General. Ch. Div.: Warrington, J. May 9.Counsel: Danckwerts, K C. and William Allen; Sir Rufus Isaacs (A.-G.), Sir John Simon (S-G.), Austen-Cartmell, and S. A. T. Rowlatt. Solicitors: Wood and Sons; Inland Revenue Solicitors.] ̧ Marriage Settlement-Construction-Covenant to pay £50,000 to Trustees -Annuity of £2000 to Widow out of annual Income-If income not "clear annual Sum of £2000," Covenant to make up Deficit-Gross Income less than £2000-Whether Deficit payable after deducting Income Tax.-By one of a series of marriage settlements executed on the 10th July 1886 on the marriage of Sir D. C., Bart. (then D. C.), with the defendant Dame H. C, D. C. covenanted with trustees, of whom the last two defendants were the survivors, to pay the sum
of £50,000 secured on mortgage; the trustees were directed to stand possessed of the sum of £50,000 after the death of D. C. upon trust to invest and to pay out of the annual income of the same (called the "wife's trust fund") to the defendant Dame H. C. the annual sum of £2000 during her life. D. C. also covenanted that if during the widowhood of the defendant in any year the income of the wife's trust fund should not amount to the clear annual sum of £2000," his executors should in every such year pay to Dame H. C.," such a sum as shall be equal to the amount by which the income of the trust fund shall in such year have fallen below the sum of £2000." The £50,000 was duly paid and invested by the defendant trustees. Sir D. C. died on the 13th June 1909, having by his will appointed the plaintiffs executors and trustees and directed them out of his converted residue to pay the stamp or probate duty, estate duty, and settlement estate duty, and all other death duties payable in respect of his estate and his testamentary expenses and debts. By a codicil dated the 11th Jan. 1909 Sir D. C. directed the trustees to invest a sum sufficient to discharge his liability under the covenant under his marriage settlement. At Sir D. C.'s death the wife's trust fund produced a fixed income from which income tax was deducted at the source, and, after a deduction for estate duty, the other investments composing that fund yielded an income, without deducting income tax, of £1442 78. 6d. per annum. Dame H. C.'s income from all sources was above £5000 per annum. The trustees of Sir D. C.'s will by their originating summons asked whether, for the purpose of ascer taining the amount Sir D. C.'s estate was liable to pay H. C., the income of the wife's trust fund was to be taken at the gross income without deducting income tax or super-tax, and whether the amount for which they were liable was the amount by which the income of the wife's trust fund (whether gross or net, as might be) should fall below £2000 or such sum less income tax thereon. For the trustees of the will it was eaid that income tax does not arise before the income is received, but is only taken before for the purposes of collection, and Gleadow v. Leetham (48 L. T. Rep. 265; 22 Ch. Div. 269). Warren v. Warren (72 L. T. Rep. 628; (1895) W. N. 72), and Re Sharp; Rickett v. Rickett (95 L. T. Rep. 522; (1906) 1 Ch. 793) were referred to. Held, that for the purpose of ascertaining the sum the testator's executors were liable to pay. the income of the wife's trust fund must be taken at the gross income without deducting income tax or super-tax, and, the covenant being a covenant to pay £2000 or such less sum as would make up £2000, the testator's estate was entitled to deduct income tax on the amount by which such gross income fell below £2000 on payment to the trustees of the settlement, his estate being liable for such sum as with the income tax would make up the deficit.
[Re Sir Daniel Cooper, Bart.; Cooper v. Cooper. Ch. Div.: Eve, J. May 5.- Counsel: Austen-Cartmell; L. W. Byrne; Errington. Solicitors: Mackrell, Maton, Godlee, and Quincey.] Mortgage-Sale-Admission by Mortgagee of Balance in Hand-Action by Mortgagor claiming larger Sum-Order under Order XV., r. 1, for an Account-Certificate finding increased Sum due from MortgageeCosts. On the 10th June 1909 the mortgagee, T. J. J., whose legal personal representatives were the defendants to the present summons on further consideration, realised by the exercise of the power of sale a mortgage for £140 granted by L. W., of whom the plaintiff was the widow, legal personal representative, and devisee, on the 10th Aug. 1904. The mortgaged property sold for £495-a sum more than sufficient to pay principal, interest, and costs. Before action the mortgagee admitted having a balance due to the plaintiff of £103. The plaintiff refused to admit the accuracy of the mortgagee's account, and on the 15th Sept. 1909 brought an action claiming a liquidated sum as had and received by the mortgagee for her use in excess of the £103, and asked for an order for an account. The account was directed by an order dated the 26th Oct. 1909. The master by his certificate found that the balance due from the defendant mortgagee was £199 103. 11d.. certain costs of the mortgagee being disallowed. On the 17th Nov. 1910, on an adjourned summons to review the taxation, an order was made varying the certificate, and the costs of the application and adjournment into court were reserved. On further consideration each party claimed to recover the costs against the other, the plaintiff denying that the rule laid down by Lord Selborne. LC. in Cotterell v. Stratton (28 L. T. Rep. 218; 8 Ch. App. 295, at p. 302), that a mortgagee who has not been guilty of misconduct is entitled to costs, applied to the present case, where the action was not in the nature of a redemption action and the costs fell within the ordinary rule under Order LXV., r. 1, and were in the discretion of the court. Further, the plaintiff urged that the action was one in which the plaintiff was asserting a fund to be in the hands of the defendants as trustees. Amongst other cases the plaintiff relied upon Heath v. Chinn (98 L. T. Rep. 835) and Eley v. Read (76 L. T. Rep. 39). Held, following Tanner v. Heard 3 Jur. N. S. 427) and Charles v. Jones (No. 2) (56 L. T. Rep. 848; 35 Ch. Div. 544, 549), that the case was not one to be treated as a redemption action or in the nature of a redemption action, and the costs of the action for an account were in the discretion of the court. In the exercise of that discretion the defendant was ordered to pay the general costs of the action and the plaintiff the costs of the summons to review taxation, with the usual set-off.
[Williams v. Jones. Ch. Div.: Eve, J. May 4-Counsel: Law. rence, K.C. and Owen Thompson; G. R. Northcote. Solicitors: Bel, Brodrick, and Gray, agents for Cousins and Botsford, Cardiff; Field, Roscoe, and Co, for A. Frank Hill, Cardiff.]
KING'S BENCH DIVISION. Commission-House Agent - Commission Note on Sale of licensed Premises-Person prepared to Purchase found by Agent-Sale by Owner
Right of Agent to Commission.-Appeal from the decision of His Honour Judge Hill Kelly, sitting at the Tredegar County Court. The defendant, who was the owner of certain licensed premises which he was desirous of selling, gave a commission note to the plaintiff on the 23rd Sept. 1910 in the following terms: "I hereby agree to pay you a commission of one pound per cent. upon the purchase price of the Royal Oak Inn, Bedwas (Mon.), if you are successful in introducing a purchaser of the said house and premises.” On the 4th Oct. the plaintiff had an interview with the defendant ard told him that he had a client, whose name was not mentioned, who was prepared to give £3500 for the property. This offer the defendant declined to accept, stating that his price was £4000. The plaintiff thereupon said he would see his client again. On the 6th Oct. the plaintiff saw the defendant and said his client was prepared to pay £4000 for the property, on which the defendant told him that he was too late as he had sold the house himself on the 4th Oct. The plaintiff thereupon brought an action against the defendant claiming that he was entitled to his commission on the ground that he had introduced a purchaser for the property. The learned judge held that the plaintiff was not entitled to commission, since, by the terms of the contract between the parties, the defendant was not debarred from employing other agents beside the plaintiff nor from selling the property himself. Held, that the decision of the learned judge was right, and that in such a contract, unless there is a specific arrangement to the contrary, the putting of a house for sale into the hands of an agent does not prevent the owner of the house from selling the house himself or from selling through another agent, and, if this is done before the relationship of vendor and purchaser arises between the owner and the purchaser found by the original agent, then the latter has not found a purchaser and is not entitled to commission.
[Brinson v. Davies. K. B. Div.: Pickford and Lush, JJ. Counsel: Sankey, K.C. and Herbert Smith; Abel Thomas, K.C. and Ivor Bowen. Solicitors: W. R. Davies and Co., Pontypridd ; Gibson and Weldon, for A. E. 8. Thomas, Pengam, Mon.] Negligence-Railway Company-Level Crossing-User without Interrup tion by Railway Company-Duty on Railway Company to take Precautions. Appeal from the decision of His Honour Judge Harington, sitting with a jury at the Croydon County Court. The plaintiff brought an action against the defendants, a railway company, to recover as damages the sum which he had been compelled to pay under the Workmen's Compensation Act 1906 to the dependants of a servant in his employment who had met his death as the result of an accident which happened upon the defendants' railway line owing to their alleged negligence. The accident in question occurred at a level crossing over the railway which was protected on either side by gates, and which was used by persons passing with vehicles without interruption by the defendants. There was a etation 750 yards from the crossing in question, and there was another crossing 350 yards above that at which the accident occurred. The line curved before coming to the latter, and at a point 183 yards above it there was a board directing engine-drivers to whistle. A train travelling at twenty-five to thirty miles an hour would take twelve and a half seconds in travelling from the whistle board to the crossing. Along the side of the line were trees, which would prevent anyone seeing the signal, and which to some extent might prevent anyone approaching the crossing from hearing a whistle. The deceased man was endeavouring to oross the line with a horse and cart when he was struck by a train travelling at a speed of between twenty-five and thirty miles an hour and killed, there being no suggestion of any negligence upon the part of the driver of the train. The jury found (1) that the crossing was habitually used for vehicular traffic to the knowledge of the defendants and without hindrance by them; and (2) that the company were guilty of negligence in failing to provide sufficient safeguards for vehicular traffic, having regard to the character of the neighbourhood, and that the accident was the result of such negligence. Upon these findings the learned judge entered judgment for the plaintiff. The defendants appealed, and it was contended upon their behalf that in the above circumstances there was no evidence of negligence which could render them liable. Held, that, the crossing being used for vehicular traffic to the knowledge of and without interruption by the defendants, they were under an obligation to take proper precautions for the protection of persons using the crossing, and that upon the above facts there was evidence upon which the jury might come to the conclusion that such precautions had not been taken.
[Jenner v.. South-Eastern Railway Company. K. B. Div.: Pickford and Lush, JJ. May 5.-Counsel: Shakespeare; F. Mellor. Solicitors: F. J. Berryman; Herbert H. Groves.]
BROUGHTON'S REMINDERS FOR CONVEYANCERS.-With references to some of the best Precedents. Crown 8vo., price 3s. 6d. net, post free. Third Edition.-HORACE Cox, "Law Times" Office, Windeor House, Bream's-buildings, E.C.-[ADVT.]
WARNING TO INTENDING LESSEES OF HOUSES.-Before purchasing or renting a house it is very important to get an independent report on the drainage, sanitary fittings, & water supply by an expert from the Sanitary Engineering Co., 65, Victoria-st., S. W. Estab. 35 years. Tel. "Sanitation London." 'Phone: 316, Westminster. Apply for prospectus. [Advt.]
A Treatise on the Law of Light. By R. G. NICHOLSON COMBE, M A., LL.M. Butterworth and Co.
THIS is a work that fills a distinct want and will be found to comprise a clear exposition of the law relating to the nature, acquisition, preservation, and extinguishment of the easement or right to light, and the remedies afforded for the protection of window lights. As the learned author points out, the full effect of the House of Lords decision in Colls v. Home and Colonial Stores (1904) has yet to be fully realised, and the alteration in the conception of the nature and extent of the easement has opened up a wide field of judicial inquiry and decision. In nine concise and well-written chapters the author deals with the nature and extent of the easement of light, creation of the right to light by express grant, easements of light arising by implication of law, the doctrine of prescription, prescriptive claims apart from the Prescription Act, statutory prescription, extinguishment and variation of easements, and remedies for disturbance thereof. While restricting himself on matters not yet covered by decisions, the author, as a practitioner, recognises the value of a knowledge of principle, and has therefore embodied some useful considerations which are likely to be taken into account when these questions arise before the courts. There is a good index and the usual tables. with complete references.
The Student's Intermediate Digest, by Albert Gibson and Arthur Weldon (Law Notes Publishing Offices), containing all the questions set at the intermediate examinations of the Law Society on Stephen's Commentaries on the Laws of England, is now in its sixth edition. It follows on the same lines as former editions, the questions set at the solicitors' intermediateexaminations since the appearance of the last edition having been incorporated, which has increased the size of the book.
The well-known Handbook on Joint Stock Companies, by Messrs. F. Gore-Browne, M.A, K.C., and William Jordan (Jordan and Sons) is now in its thirty-first edition. It is not a year since the last edition appeared, but a new one was called for on account of the Assurance Companies Act 1909 having come into force, and there being numerous alterations in regard to stamps and duties owing to the Finance (1909-10) Act 1910. Decisions upon company matters reported down to February this year have been referred to in their proper places.
Mr. Arthur Page and Mr. William Finlay have attempted to expound the meaning of the Shops Bill 1911 in a pamphlet published by Stevens and Sons. The measure is of great importance to all those connected either directly as shopkeepers, or indirectly as employees, with shops. For convenience of reference the full texts. of previous Shop Acts, together with the regulations made under the Shops Hours Aot 1904 are given in an appendix.
Defamation Law in New South Wales, by Mr. James Moriarty, has come to us from Sydney (F. Cunninghame and Co.). It is a small book treating of the law of actionable defamation, whether spoken or written, in that State. "The difficulty," observed Mr. Justice Blackburn in a famous case, "is to determine when it becomes right. for a person to speak." Mr. Moriarty bas endeavoured to show when it is safe for a person to speak or write of another under the New South Wales law.
Mr. Sydney Leader has done a useful thing in translating the Wechselordnung and the Sheckgesetz into English and publishing them under the title of the German Law of Bills of Exchange and of Cheques. (Sweet and Maxwell). The German law is also of interest as showing one of the earliest examples of that unification of the law of bills. of exchange so strongly advocated by the International Law Association and other bodies.
The Law Relating to Sunday Travellers, by George Dukes (Effingham Wilson), is a small work intended primarily for the use of laymen, being a short and concise treatise on a somewhat complex subject. There is an explanation of the police-court procedure, and chapters. dealing with guests at a public-house and the liability of an innkeeper.
Mr. Christian Tearle has published with Messrs. Longmans a collection of his verses, and has called the book after the title of the first poem, The Gardens of Gray's-inn. There is also a poem on the Ghosts. of Lincoln's-inn, and others on neighbouring places. A genuine love of the locality and a facile pen have turned out some very creditable word pictures. Perhaps we like as well as any the story of the cat who found reluge and a good home with a resident in Gray's-inn.
The quarterly issue of Mews' Digest of English Case Law, dated April, is now out. It contains cases reported from the 1st Jan. to the 1st April this year.
The Law Magazine and Review for May contains: Early Law Schools in London, by Hugh H. L. Bellot; Judicial Statistics, England and Wales, 1909, Part 1-Criminal Statistics, Part 2-Civil Judicial Statistics; The Law relating to Commissions and Tips," by J. A. Lovat-Fraser; On the Summoning of a Jury, by J. K. F. Cleave; The Prevention of Crime and Reformation of Criminals; and Current Notes on International Law.
The Canadian Law Times for April contains: United States Rights in British Bays; Memorandum of Decisions of the Judicial Committee of the Privy Council respecting the Powers of Dominion and Provincial Legislatures in Canada from the date of Confederation to ne 31st Dec. 1910. by L. W. Coutlee, K.C; the Practice of Law in Quebec, by H. S. Ross, K.C.; the Examination in Chief of Witnesses; and Property in the Title of a Book or Newspaper.
The Harvard Law Review for May contains articles on Release and Discharge of Powers, by John Chipman Gray; Executory Ultra Vires Transactions, by Edward H. Warren; and a Proposed Uniform Marriage Law, by Ernst Freund.
We have received the April and May numbers of the Citator from India with the double supplements containing Criminal Cases, and the Statutes, Rules, and Orders.
THE advocates of the movement generally described by the catch phrase "back to the land" proceed on two main lines of thought. There are those who prefer the principle of leases, and, on the other hand, there are those who pin their faith to out-and-out ownership. The first of these principles has had its outcome in the legislation affecting small holdings, whilst Mr. JESSE COLLINGS has been for many years advocating the latter. Lord MALMESBURY has now brought forward concrete proposals in the House of Lords, and their main purpose is to facilitate the sale of the land to the occupying tenant by adopting in effect the methods set out in Mr. WYNDHAM's Irish Land legisla tion. The machinery employed, however, in the Bill is such as to constitute the Board of Agriculture and Fisheries land agents on a vast scale, and there is entailed another large item for public expenditure. The advantages of ownership and the steadying effect on character are sufficiently obvious, but practical men have to consider the very important fact that at present applicants for purchase are comparatively few. Thus, out of 4000 applications for emall holdings in 1910, only seventy-four individuals sought to buy. In Cambridgeshire, out of all the acreage devoted to small holdings, only one man desired to purchase. There are not wanting obvious reasons, partly connected with distrust of political eventualities, why persons should prefer tenancy to ownership, even though the latter represents on paper so much the more solid advantage. These facts will require to be duly considered when the Bill is examined in detail in a Select Committee, and the further fact that taxation is involved to the tune of twelve millions must be borne in mind. Even this sum would not finally suffice for the purpose. something particularly baffling in relation to these land problems, for the inducements held out are so frequently tempting to a class of man who knows too little about practical cultivation to afford any reasonable chances of financial success.
THE scheme of State insurance against unemployment and sickness is so immense in itself, and is so intimately intertwined with such large problems as those affecting friendly societies, that it is impossible to form a fair opinion, until after the committee stage has been accomplished, as to its real and practical results. That it should have received so large a measure of support from both sides of the House is not surprising, for many persons of divergent political views have been seeking for some solution of the difficult questions involved, and more than one scheme has been formulated by private individuals. Mr. LLOYD GEORGE starts with the practical consideration that there are some 42,000,000 death policies in existence, and it may be said that very large sums are frittered away annually on display of mourning and other conventional items of expenditure. There are
only about 1,400,000 policies against unemplo ment, a risk of a recurrent and ever-present nature, and only about one quarter of the persons concerned are engaged in the callings where unemployment is most rife. About 6,000,000 policies of sick insurarce are taken out with friendly societies, and there are not wanting signs that the existing medical arrangements are unsatisfactory both to doctors and patients. The proposals in regard to sanatoria are vast in themselves, and yet they form but a side issue in this remarkable scheme Even here, however, there are the obvious difficulties of safeguarding against recidivism into disease on a patient's return to home surroundings after sanatorium treatment. The scheme as regards unemployment is more complicated and admittedly less universal in operation. It may be added that the net result on the problem with which it is concerned is even more difficult to estimate. There are already expressions of opinion favourable to the principle of the scheme, but apprehensive of what may be the effect on the industrial market. Lord FURNESS' calculation that one alone of his firms will lose £166 a week in contributions shows to what an expense employers are likely to be exposed at a time when they are hard put to it to withstand foreign competition. It is not unworthy of comment, as showing the House of Commons in its better aspect, that Mr. LLOYD GEORGE'S splendid effort of constructive legislation was received on all sides with a warm tribute to his own personality after his long enforced absence through illness.
THE whole theory of democratic government and the complicated machinery governing elections would stand in jeopardy if measures were adopted which would tend to discourage voters from exercising their functions and thereby declaring, so far as the same is possible, what their opinions are on the questions before them. It is, of course, now recognised that the number of persons conveyed to the poll by means of motors is growing each year, and few candidates require education in recognising the circumstance that lukewarm adherents can only be induced to forego their daily round of work by being driven to and from the polling place with the utmost economy of time and trouble. Were the Bill presented by Sir CHARLES HENRY to be accepted, the object being to prohibit the letting, lending, or employing of a motor for the conveyance of electors, it is safe to state that the voters who have only polled when enabled by mechanical vehicles to do so without unduly interrupting the course of their regular duties will ignore the election altogether. The Bill becomes, then, one for the diminution of voters at contests-a thing undesirable to candidates and most highly inconvenient at a period of history when it is more than ever essential to know the will of the people.
LORD LANSDOWNE'S computation that sixteen members of the House of Lords, as at present constituted, belong to the category of Law Lords indicates that the number of Law Lords has very largely increased since the period of which Lord BROUGHAM has placed on record his startling experience as follows:
The usage is, and for above a century has been followed with a single exception, for all but the Law Lords to abstain from taking any part either in questions of appeal from the courts of equity, or writs of error from courts of law, or in case of peerage claims, which, are regarded as questions of private right. Hence only four or five of the Lords, and, generally speaking, only one-the Chancellor-exercises this high jurisdiction. These call to their assistance the judges when they think fit, but we know that they do not hold themselves bound by the opinions which these judges deliver. The appeal, too, from the Lord Chancellor's decrees is heard by himself, and until very lately, he alone sitting regularly in the House of which he is Speaker or President, all the appeals from himself were disposed of by himself. It is now a mere accident that any other Law Lords form part of this High Court of Appeal. For nine years the two Chief Justices and the Chief Baron were not in this House. Lord Eldon sat alone as Chancellor, and it was a mere accident that Lord Redesdale, having left the Great Seal in Ireland, was ever in the House of Lords. For five years he was not there, from 1801 till 1806, and, as Lord Ellenborough never attended and, if he had, never would have interfered in any Chancery case, Lord Eldon during all these years, the most inexperienced of his long Chancellorship, alone sat in judgment on the appeals from his own decrees. That they were few in number may be imagined. But it is not even necessary that there should be a single Law Lord in the House. There a Commoner. 'I have must be a Speaker, but he may be practised at the Bar of the House of Lords when the chair was tilled by Sir John Leach, then Master of the Rolls, and by Sir Charles Abbot, the Chief Justice of the King's Bench. There was not one Law Lord present. The Speaker having no right to do more than put the question, having not so much as the right to come into the House -for his seat is not in the House at all-whatever decision was pronounced in the cause was given by any three lay peers who chanced to have come in, whether they had heard a word of the argument or
not. Indeed, I myself once sat as Speaker and heard an important case before I had taken my eeat as a peer. There was a difference of opinion between me and the only Law Lord present, and I had to adjourn the decision of the case until I took my seat and could argue the point. The decision was then given according to my opinion in consequence of another Law Lord coming down to decide the question: (Brougham's British Constitution, pp. 359-361).
THE proposal in Lord Lansdowne's Reform Bill that peers without seats in the reconstituted House of Lords should be eligible for election to the House of Commons may recall the circumstance that after the abolition of the House of Lords in Feb. 1649 three peers the Earl of Pembroke, the Earl of Salisbury, and Lord Howard of Escriok-sat for constituencies as members of the House of Commons. Before the Scotch Union, Scotch peers were eligible for election to the English House of Commons. Lords Falkland and Fairfax sat in that assembly although peers of Scotland, and on the passing of the Scotch Union the seats of three Scottish
peers who were members of the English House of Commons became ips facto vacant. Before the Irieh Union, peers of Ireland were eligible for seats in the British House of Commons, and, by a peculiar provision in the Act of Union, these peers are eligible for election to the House of Commons for constituencies in Great Britain, but not in Ireland.
MR. IAN MALCOLM's fear of what he calls "bogus" sessions, and his desire, embodied in an amendment, that a session shall for the purpose of the Parliament Bill extend over a period of not less than 120 days, are evidently traceable to the fact, which has only of late been realised, that & session, however short, may be prorogued for a day or two and a new session then may be begun for the introduction afresh of a Bill which had miscarried in the previous session. William III. prorogued. Parliament for one day only, from the 21st to the 23rd Oct., in order to renew the Bill of Rights, concerning which a difference had arisen between the two Houses. In 1707 Parliament was prorogued for a week-from the 7th April till the 14th-to give the Commons an opportunity of bringing in a new Bill, similar to one which had been rejected by the House of Lords, relating to the importation of foreign commodities into Scotland. There is an instance almost as momentous 88 the instance in the Revolutionary period of 1689 of a short prorogation in order to bring in a Bill whoee predecessor had been rejected by the House of Lords. In 1831 Parliament was prorogued from the 20th Oct till the 6th Dec. in order to bring in the third Reform Bill.
THE position enunciated and maintained by the Lord Chancellor, that appointments to the magistracy, as he stated in a letter read by Mr. Asquith in the House of Commons, should be filled on his sole responsibility, is in consonance with the traditions of the office of holder of the Great Seal. It is no secret that Lords Chancellors have insisted that all judicial appointments in their gift from magisterial posts to seats on the Judicial Bench should be made on their undivided responsibility and in the exercise of their absolute discretion. Lord Chancellor Eldon is stated very circumstantially to have immediately tendered a resignation of office, which was not accepted by George III., when pressed by that monarch to recommend to him for appointment to a vacant puisne judgeship a gentleman on whom he wished to confer the position. It is well known that an eminent member of the Bar for whom Mr. Gladstone desired puisne judgeship was not recommended for that position by the Lord Chancellor in Mr. Gladstone's Cabinet, of which he was a supporter in the House of Commons, and that his ultimate promotion to the Bench was the result of the recommendation of a Lord Chancellor to whose party he was a very strong political opponent. Lord Campbell in his diary refers to his appointment, or, to speak more accurately, his recommendation to the Crown for appointment, to a puisne judgeship of Mr. (Lord) Blackburn, & stuff gownsman, opposed to him in politics, of whose suitability for the Bench he had formed the highest judgment, and anticipates the strictures to which his selection, in which he was determined not to be influenced, would be likely to be subject.
Mr. Balfour, in his speech on the occasion of the presentation to the Speaker and Mrs. Lowther by the members of the House of Commons of all parties of gifts in commemoration of the twentyfifth anniversary of their marriage, in a feeling allusion to the
absence, owing to family bereavement, of Mr. Asquith, termed him the Prime Minister, and then, correcting himself, substituted the term Leader of the House of Commons as a designation which showed that he was brought into a definite relationship with every member of that House irrespective of party. It is of interest to recall the circumstance to recollection that the leadership of the House of Commons, a position with which every student of constitu. tional development is acquainted, is incapable of legal definition, and falls within the domain of the unwritten or conventional Constitution which has grown up by the side of our written law. "The Leader of the House of Commons," writes Mr. Freeman, "is 8 person 88 well known to the House and to the country as the Speaker himself, and his functions are quite as well understood. But of the Leader of the House of Commons the law KLows nothing. It would be hopeless to seek to define his duties in any legal form, and the House itself has, before now shrunk from recognising the existence of such a person in any shape of which a court of law could take notice": (Growth of the English Constitution. p. 126). When in Feb. 1854 Mr. Cayley moved for a "Select Committee to consider the duties of the member leading the Government business in this House and the expediency of attaching office and salary thereto," the motion was withdrawn after having been opposed by Sir Charles Wood (Viscount Halifax), Mr. Walpole, and Lord John (Earl) Russell. Sir Charles Wood described the post of Leader of the House as 46 an office that does not exist and the duties of which cannot be defined," and Mr. Walpole spoke of it as a "position totally unknown to the Constitution of the country."
In the House of Lords, on the 4th inst., the Lord Chancellor moved the second reading of the Lunacy Bill, which asks statutory sanction to a scheme for amalgamating the Masters in Lunacy, the Lord Chancellor's Visitors, and the Commissioner in Lunacy, with their respective offices, into one body. The noble and learned Lord explained that the measure was introduced in pursuance of the recommendation of the Royal Commission on the Feeble-minded, and left wholly unprejudiced the large settlement of the care of the insane and feeble-minded which the Royal Commission dealt with in its report. It was also proposed to add two more medical men to the commissioners and to provide that the unpaid commissioners might include women.-The Bill was read a second time.
In the House of Commons, on Monday, Mr. A. Henderson asked the Secretary to the Treasury whether any specific complaints had been received from solicitors or law stationers respecting the delay and inefficiency in dealing with the Estate Duty Office work; whether he was aware that unchecked assessments might mean demands for duties on executors years hence, after estates had been wound-up, when funds would not be available; whether the functions of the Accountant-General of Inland Revenue up to 1906 extended to the checking of estate duty assessments; and, if so, what saving resulted during the last two years of that check.-Mr. Illingworth answered the question. He said: No complaints have been received as to delay or want of efficiency in the Estate Duty Office, and no assess ments of death duties are sent out unchecked. Prior to 1908 a check, chiefly arithmetical, of such assessments was made in the department of the Accountant General of Inland Revenue; but since then an expert and more effective system of checking has been established in the Estate Duty Office, with considerable benefit to the Revenue. No net saving resulted during the last two years of the former check, but a substantial gain has resulted from the change of system.
Mr. King asked the Prime Minister whether he would have a circular of instructions drawn up for the guidance of the advisory com. mittees now being appointed to advise the lords-lieutenant in the selection of magistrates, so that the committees might in all cases be clear as to their duties and powers and so that there might be some uniformity in their actions. Mr. Asquith: This is a matter entirely within the province of the Lord Chancellor, and he is of opinion that the best course would be to send to each member of the committee a copy of the Royal Commission's report, which touches every point, together with a short memorandum referring to the portions which deal with the functions of the committees. He will cause this to be done.-Mr. Martin asked whether there would be an advisory committee as to the appointment of justices of the peace for the whole of the county of London or one for each of the boroughs of London. -Mr. Asquith: A single committee would not suffice for London, and it is proposed to have a number of committees. The case of London has been for some time under consideration, and probably the best course will be to divide the committees in the manner suggested by the hon. gentleman.
In the House of Commons, on Tuesday, Mr. C. Wason asked the Secretary of State for the Home Department whether he would give instructions that poor persons should not be interfered with by the police while exercising their art of fortune-telling as long as persons were permitted to carry on the same pursuit in the purlieus of the West-end and advertise openly the profession of the supernatural.— Mr. Masterman answered the question. He said: In reply to a
similar question, my right hon. friend the Prime Minister, when he was at the Home Office in 1893, gave the following reply: "By the Vagrancy Act 1824 every person using any subtle craft, by palmistry or otherwise, to deceive and impose on any of Her Majesty's subjects is to be deemed a rogue and a vagabond and to be subject on conviction to imprisonment. The mere practice of palmistry is not, so far as I am aware, illegal; the essence of the offence created by the statute is the intention to impose, and the object is to protect the young and the ignorant. The police have instructions to watch cases of suspicion, and whenever there is good ground for believing that fraud or imposition is being practised they will be directed to proseeute." The practice laid down by my right hon. friend is etill followed by the police.
In the House of Lords, on Wednesday, on the report of amendments co the Earl of Shaftesbury's Bill to amend the Employment of Children Act of 1903, the Archbishop of Canterbury moved an amendment with the object of extending the age at which boys shall be allowed to be employed in or to carry on street trading from fourteen as provided in the Bill to fifteen.-The amendment was agreed to.-The Earl of Shaftesbury moved an amendment, which was accepted without discussion, providing that no girl under the age of eighteen should be employed in or carry on street trading.-Lord Macdonnell moved to exclude Ireland from the operation of the Bill, on the ground that the struggle for existence in that country is much more severe than in England, and that the dangers against which the Bill is intended to guard are not so appreciable.-The amendment was adopted, and the report was agreed to.
In the House of Commons, Mr. Wedgwood asked the Secretary of State for the Home Department whether he still hoped to introduce legislation this session respecting the imprisonment of young persons unable to pay police-court fines.-Mr. Churchill: I hope to introduce this session & Bill dealing with this and with other matters relating to the administration of justice, but the demands on the time of the House are already formidable.
Mr. W. Peel aeked the Prime Minister whether Sir Ernest Soares retired from the active business of solicitor eleven years ago; and whether, in view of the alleged necessity for securing an Assistant Comptroller of the National Debt Office with legal knowledge, he could appoint a more competent legal adviser than the late Government Whip from among those solicitors who are still engaged in professional practice. -Mr. MacNeill: Is the right hon. gentleman aware that Mr. James Frederick Daly, then Private Secretary to Lord Salisbury, was appointed to this very office in 1888 by Lord Salisbury as Prime Minister, and that he had had no legal experience ?-Mr. Lloyd George, who replied, said: I believe Mr. MacNeill is quite right in regard to the circumstances to which he refers. In answer to the question of Mr. Peel, I am satisfied that the legal and other qualifications of Sir Ernest Soares for the post are fully sufficient. M. Snowden: Arising out of the reply to Mr. MacNeill, if it be a fact that Lord Salisbury did make this appointment does that justify a Liberal Government in a similar piece of jobbery ?-Mr. Lloyd George: Perhaps the hon. gentleman did not quite follow what the question was. The question was whether this gentleman was appointed without any legal knowledge at all. The appointment made by the present Government is of a gentleman who certainly bas legal knowledge.-Mr. Peel: Was any statement made by the late Lord Salisbury or by anybody else representing him or the Conservative Government of that day that he was appointed for his 1 gal qualificatione, as was stated to be the case with Sir Ernest Soares ?Mr. Lloyd George: Seeing that he had no legal qualification at all I @bould say not.
On report of the Parliament Bill, the only further proposal discussed was one by Dr. Hillier for the omission of clause 2. This was defeated by a majority of 105. The guillotine having come into force a few Government amendments were passed, and the report stage was brought to an end.
Mr. Black presented a Bill to repeal the Vaccination Acts, and it was formally read a first time.
The Copyright Bill was further considered on Tuesday by Standing Committee A of the House of Commons, when amendments intended to allow, under certain conditions, without infringement of copyright. the publication in school books of extracts from copyright works were discussed, and eventually rejected.
The order for the committee stage of the Lord Chancellor's County Courts Bill in the House of Lords has been discharged, and it is understood that the Bill has been withdrawn.
The memorial of the Liberal members to the Prime Minister on the subject of the appointment of justices was given to the Chief Whip on Wednesday by a deputation consisting or Mr. Neil Primrose, Mr. Silvester Horne, Sir Charles Henry, Sir George White, and Mr. Logan. Subsequently the Master of Elibank intimated that time would be given after Whitsuntide for the discussion of the report of the Royal Commission on the Selection of Justices.
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It is not before its time that the Upper House of Convocation should give some consideration to the law relating to ecclesiastical dilapida. tions. Some amendment, favourable to simplicity and efficiency, is urgent. Especially should some reform be made whereby surveyors should be paid by salary, and not by fees; in this latter feature may be found the germ of much dissatisfaction. It is now proposed that periodical inspections should take place, instead of subjecting incumbents to the annoyance connected with orders for repairs and obtaining money from predecessors or their estates. Periodical and compulsory inspections would go a long way towards preventing buildings getting into a condition of disrepair. Small sums charged at regular intervala and calculated by a competent surveyor, whose disinterestedness was above suspicion, would occasion far less anxiety than the unknown and heavy expense falling at an uncertain and probably inconvenient time. It is easy to note that the adherents of the "parson's freehold" doctrine will find cause for complaint, but, as the acheme now proposed has received the sanction alike of Convocation and Queen Anne's Bouuty, it should also not fail to overcome the opposition of those who consider themselves degraded to mere leaseholders. In this purely business side of ecclesiastical work it would be wise for al parties to approach the problem in a businesslike spirit, and not to complicate a matter, already difficult enough, by the introduction into it of matters of personal dignity.
LORD LANSDOWNE's remark in his speech on the introduction of the House of Lords Reform Bill, that the historical right of the bishops to sit in the House of Lords is unimpeachable, is amply sup ported by irrefragable proof. Long before the Conquest prelates and nobles the original of Lords Spiritual and Temporal-sat in the Witenagemot. In the early times of the growth of Parliamentary development, the assent of the Lords to an Act of Parliament was generally said to be by prelates, dukes, and earls. The expression "Lords Spiritual and Temporal" occurs for the first time in an ordinance of the King in his "Great Council" in the thirteenth year of Richard II., and in the fourth year of Henry IV. the words are used for the first time in the commencement of a statute. With few exceptions, the term is henceforward employed as the usual mode in statute of describing the whole body of the House of Lords. Archbishops and bishops from the first were generally all summoned. The number of abbots and priors who were summoned to the Upper House varied largely at different periods. Upon occasion, 122 abbots and forty-one priors of various monasteries were summoned. After 1341 the number gradually became fixed at twenty-five abbots, two priors, and three heads of orders. Formerly the higher and lower prelates were together more numerous than the Lords Temporal, but, as a consequence of the dissolution of the monasteries, all the lower prelates disappeared within a few years, and the preponderance of the Lorda Spiritual in the House of Lords was completely terminated. In 1641 a Bill to disqualify bishops from sitting as members of Parliament was thrown out by the House of Lords, but the Commons renewed their endeavours in this direction, and in 1642 the Lords accepted a Bill, which was repealed on the Restoration (13 Car. 2, st. 1, c. 2), by which all temporal power of the clergy, especially the right of the bishops to vote in the Upper House, was abolished. Orly twenty-six bishops and archbishops are now summoned to sit in the House of Lords as Lords Spiritual, and this number cannot be exceeded, as the summoning of Lords Spiritual is now regulated by statute (10 & 11 Vict. c. 108).
CRIMINAL LAW AND
THE JURISDICTION OF MAGISTRATES.
RECENT DECISION. REX v. SHAW AND EGLIN.
Illegal Practices Prevention Act 1883-Illegal hiring of Motor-cars at Elections-Knowledge of the Purpose for which the Cars were hiredHiring of two or more Cars constitutes two or more Offences-Onus of Proof.
AT the Manchester City Police court, on the 28th ult., charges of illegally using motor cars at the December Parliamentary elections were made against Ralph Rothwell Eglin, secretary and manager of the Oldham Motor Company Limited, of Werneth, and Fred Shaw, assistant secretary. The sum montes were taken under the Illegal Practices Prevention Act 1883.
Gordon Hewart for the Director of Public Prosecutions; E. Sutton for the defendants. E. C. Burgis watched the proceedings on behalf of interested parties.