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Vol. CXXXI.-No. 3570.
MR. JUSTICE HORRIDGE sat for the last time as Vacation judge on Wednesday, the 30th ult., and for the second half of the Long Vacation Mr. Justice LUSH will occupy the position which Mr. Justice HORRIDGE vacates on Tuesday next. Once again the cases before the court were altogether unimportant.
THE right to employ the military for the purpose of quelling a riot, and to resort to the use of firearms for that purpose, was further exemplified by the verdict of "justifiable homicide" returned by the jury at the coroner's inquest upon the two men killed by the fire of the troops at Llanelly. That the verdict was the only possible one was clearly shown by the evidence given at the inquiry, and the crder to fire under the circumstances was abundantly justified.
THE law of libel as it affects newspapers has naturally been a subject of discussion during the present week at the meeting of the Institute of Journalists. No doubt the result of the case of Hulton and Co. v. Jones (101 L. T. Rep. 831; (1910) A. C. 20) was an unpleasant surprise, but the soundness of that decision cannot be doubted. Owing to the wide publicity given to a defamatory statement that appears in the columns of a newspaper, the verdicts of juries have clearly shown their disposition to treat libels in the press seriously, and, although we do not for one moment suggest the existing law should not be amended in some respect, such amendments, to our mind, ought to be directed more towards the existing practice and procedure in actions for libel and slander rather than the principles which apply to the law of defamation itself.
A BILL has been introduced in the House of Commons which contains several clauses which if passed into law would do much to mitigate the grievances that at present exist. In the first place, money cannot be paid into court in such actions with a denial of liability. We have always been at a loss to understand why this should be so, as money can be so paid in in other actions where character is quite as much at stake, and by the Bill it is proposed to provide
Notwithstanding any provision contained in Order XXII., r. 1, of the Rules of the Supreme Court, the defendant in any action of libel or slander (or the plaintiff where a defendant counter-claims for libel or slander) shall be at liberty to pay money into court as in all other actions, either with or without a defence denying liability.
ANOTHER clause provides that a verdict for nominal damages may be "good cause" for disallowing costs, but such a provision would hardly be necessary if the preceding one were placed upon the statute-book. It is also proposed to amend the practice with regard to the consolidation of actions, and to amend sect. 5 of the Law of Libel Amendment Act 1888 by adding a clause as follows:—
It shall also be competent for the judge or the court, in the case of the same or substantially the same libel published simultaneously in a number of newspapers or copied shortly after publication, to give notice to the plaintiff in any action or actions arising out of such libel, that a period stated in such notice will be allowed for the discovery of any further publications of such libel that may have taken place, in order that the whole of the actions arising out of such libel may be tried together, and after the expiration of such period of discovery no further actions shall be instituted in respect of the publication of such libel except for the recovery of special damages. Such a provision would put an end to a multiplication of actions, while at the same time the defamed person's rights would be duly safeguarded.
A FAR more difficult question is raised by the proposal that impecunious plaintiffs in libel and slander actions should be required to give security for costs. We quite agree that newspapers have in the past suffered heavily, when successful, from having to bear their own costs of the litigation owing to the insolvency of their opponent. But newspapers do not stand alone in this unfortunate position, but it is shared by
every litigant whose opponent cannot pay the costs
should he fail. The Bill contains a clause to the following effect:
In any action brought for a libel contained in a newspaper, if a judge at chambers is satisfied by evidence brought before him that the alleged libel is of a trivial character, and that the words complained of have been published in good faith, he may at his discretion make an order staying all proceedings in the action, unless within the time named in such order the plaintiff give full security for the defendant's costs to the satisfaction of a master of the Supreme Court. An action stayed under this section for a year shall at the end of that time and without order stand dismissed with costs, and the defendant shall be at liberty to sign judgment for his
We, however, do not think that there is much chance of its acceptance. While naturally having every sympathy with the Press, we have grave doubts whether the Legislature will consent to ameliorate their position to any great extent. The view taken by juries merely reflects the 'general opinion of the country at large, and the most that can be expected is some change in existing procedure.
A CORRESPONDENT writes:
The text of the Bill relating to the government of Scotland indicates a large number of most controversial proposals. The Bill is backed (inter alios) by Sir HENRY DALZIEL, Mr. MUNRO FERGUSON, and Mr. WASON. The general object is the establishment of a Scots Parliament. Their powers are not to extend to making laws affecting the status of the Crown, declarations of peace or war, the army, navy, or territorial forces, treaties, titles of honour, prizes, or offences against international law, but they are to be empowered to make laws "for the peace, order, and good government of Scotland." Pausing there, we find an exceedingly vague and elastic sphere of activity, and it is very doubtful whether this ambiguity is at all restricted in practice
by a series of twenty-two departments of legislation into which the Bill empowers the Scots Parliament) to embark. Again, the Bill employs a general phrase, for, after indicating these twenty-two items it ends off with the phrase, "generally, all matters of an exclusively local character." It is, however, in our complex modern life not easy to say off-hand that these twenty-two items are capable of being regarded as "exclusively local" when we consider the peculiar relationship subsisting between England and Scotland, for questions arising out of some of these matters seem of a character in which a national rather than a parochial policy should be followed. Amongst these items we find public health. criminal law, marriage and divorce, the administration of' justice, bankruptcy, education, prisons, lunacy, railways, lighthouses, canals; the acquisition, holding, disposition, and descent of land; hours of labour, industrial disputes, intoxicating liquors, and so forth. It is proposed that the King should be represented in Scotland by a Lord High Commissioner, and by him the Parliament is to be sum. moned, prorogued, and dissolved. It is to be elected by the existing constituencies, each of which shall return two members, except Dundee, which is to possess four. The universities are, however, to be denuded of representation. Each elector is to have two votes, except in Dundee, where he is to have four. There is to be a power to impose taxes other than customs and excise duties and there is to be a separate Scottish Exchequer and Consolidated Fund. The remaining clauses are mainly administrative, but they are at the same time most highly controversial. The principles, however, enunciated in the leading objects above indicated are such that it will be largely on these that the Legislature must decide the fate of this B ll.
NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR. (Continued from page 382.)
The number of important LICENSING cases has during the past year suffered considerable diminution, and few call for any comment here. Hales v. Buckley (104 L. T. Rep. 34; (1911) W. N. 32) was a case where the respondent held a wholesale beer-dealer's licence empowering him to sell not less than four and a half gallons of beer at one time for off consumption. On a certain date he sold to
B. eighteen quart bottles on the terms that B. should store the bottles and deliver them as the purchaser should require. Eighteen bottles were appropriated to this sale by the respondent, and the purchaser's name was put on them. Small sales were made, the last being some seven weeks later. The respondent in respect of this last sale was summoned under the Licensing Act 1872, s. 3, for selling beer by retail without a licence. The Divisional Court thought that the sale was complete at the first transaction, and consequently there was no sale of a less quantity than was authorised by the wholesale licence. Rex v. South Shields Licensing Justices (130 L. T. Jour. 506; (1911) 2 K. B. 1) raised the question whether upon the application for the renewal of the licence the justices were entitled to treat it as forfeited, and in holding that it could not be renewed, but that the proper course was to apply for a new licence. There were two convictions for two offences under sect. 3 of the Act; in neither case did the conviction say that it referred to a second or subsequent offence, but they had both been obtained at the same time. The law automatically entails the forfeiture of a licence on conviction for a second offence. Lord Alverstone thought that the fact that there were two convictions against the applicant for two offences committed on the same day was not enough to show that there had been a "second offence so as to bring about torfeiture. The learned Lord Chief Justice did not consider that the justices could rightly regard these two convictions as being one or other of them necessarily concerned with first or second offences.
Two very interesting decisions on the STATUTE OF LIMITATIONS may be here mentioned. The first of these is Re Robinson; McLaren v. Public Trustee (104 L. T. Rep. 331; (1911) 1 Ch. 502), heard by Mr. Justice Warrington. A certain annuity granted in 1675 by Charles II. had become vested in one G. R., purporting to bar an entail. Later on a doubt arose as to this bar, and consequently the trustee of the annuity declined to pay to an assignee. It was eventually decided in an action that it was not barrable. Under a common mistake of fact the trustee had paid for a time to one cestui que trust money due to another cestui que trust. It was held that when one cestui que trust brings in the Chancery Division an action against another cestui que trust to recover money wrongly paid, the proceedings are like a common law action for money had and received, and the claim is barred after six years. If the claim arose in an action where the court was administering the trust and there were assets to which the overpaid cestui que trust was entitled, the court would adjust the accounts as between the parties entitled, and lapse of time would then prove no bar. Turner v.Midland Railway Company (104 L. T. Rep. 347; (1911) 1 K. B. 832) was a case of compensation under the Lands Clauses Act, where the defendants refused to pay and on arbitration were ordered to pay £10 as compensation and £80 for costs. A County Court action was brought to enforce the award, and the defendants set up as a defence that the action was barred by the Statute of
Limitations, because the works had been completed in April 1903 and no claim made until Aug. 1909, the claimant being until this latter date unaware of her rights. The judge held that the cause of action arose on presentation of the claim and the action was in time. On the making of the award a cause of action is founded for the first time, and the statute runs from that date and the period is six years. Gregory v. Torquay Corporation (1911) W. N. 130) may be lightly dismissed as showing that in County Court practice when a claim is made for the death of a son against a public authority and no action is commenced within six months as required by sect. 1 of the Public Authorities Protection Act 1893 a defence that a claim is barred by "a statute of limitations" is good enough, and it is not necessary to particularise a special statute, because the provision as to six months was in effect a statute of limitations. Re Metropolis and Counties Permanent Investment Building Society; Gatfield's case (104 L. T. Rep. 382; (1911) 1 Ch. 698) likewise requires but short notice. The member had mortgaged leaseholds to the society, and the latter had eventually to enter into possession. The deed was held by Mr. Justice Neville to be in effect a mortgage, though in form a trust, and the Statute of Limitations was held to attach when the society took possession, and it was further held that the annual accounts of the society, which included the property into which the society had entered, were not acknowledgments of title of the mortgagor within the Real Property Limitation Act 1874, s. 7.
The subject of LOCAL GOVERNMENT is becoming of wider scope and importance each successive year, and the decisions tend to become more numerous and more diversified in character. It is necessary under these circumstances to exercise restraint in choosing the points for review. Greville-Smith v. Tomlin (104 L. T. Rep. 816; (1911) 2 K. B. 9) was a case where the dispute turned on whether A. was qualified to be a member of a district council under the Local Government Act 1894, s. 46. The corporation of a borough and an urban district council formed a joint committee for a certain purpose. A. was appointed their salaried clerk; the funds out of which he was paid were forthcoming by joint contributions from the two bodies. It was decided that A. held "a paid office under the district council" and was therefore disqualified. Carshalton Urban District Council v. Burrage (104 L. T. Rep. 306; (1911) 2 Ch. 133) may be referred to in cases where the question arises whether, under the Public Health Acts Amendment Act 1907, ss. 3, 30, and 31, a place can be required to be fenced off as a dangerous place." The facts are useful as indicating points to be considered in boundary questions, and especially where there is some grave doubt as to situations fronting, adjoining, or abutting on Dawson a street. and Co. v. Bingley Urban District Council (104 L. T. Rep. 659; (1911) 2 K. B. 149) was a case where the defendants had put up a plate purporting to indicate the position of a fire plug, but did so with such carelessness that it was nearly 7ft. in error. The plaintiff sustained a fire, and the brigade found itself greatly delayed by the difficulty in locating the plug, and the damages consequent upon the fire were largely augmented. The Court of Appeal have held that setting up this misleading indicator was an act of misfeasance and not merely of non-feasance, and the defendants were held responsible for the extra loss caused by a breach of their statutory duty "to paint or mark on the buildings and walls within the streets words or marks near to such fire plugs to denote the situation thereof" (vide Public Health Act 1875, s. 66). Another case touching on the problems attending fire arose London County Council v. Cannon Brewery Company (103 L. T. Rep. 574; (1911) 1 K. B. 235). The London Building Acts Amendment Act 1905 (5 Edw. 7, C. ccix.) by sect. 12 enacts that every existing building to which the preceding sect. 10 applies "and every other existing building except
dwelling-house occupied as such by not more than two families is to be provided, if having more than two stories, with certain appliances to enable access to be gained to the roof. A public-house, fully licensed, had four stories, and the house was inhabited by the tenant, his wife, three children, a servant, and the members of the bar staff, in all thirteen persons. The question was whether such a house was a dwelling-house inhabited by one family and outside the section above mentioned. A Divisional Court held that it was, for it was impossible to distinguish between the tenants, servant, and the members of the public-house staff. Another important point to notice, now that so much street widening is being undertaken, may be mentioned as arising in Wandsworth Borough Council v. Golds (103 L. T. Rep. 568; (1911) 1 K. B. 60). In exercising the powers conferred by sect. 105 of the Metropolis Management Act 1855, the council sought to pave an old road which had become a new street and so to alter the respective widths of carriage-way and footpath as to cast on frontagers the cost of so doing. It was held that the council had no power so to act. Bolton v. Everitt (noted ante, p. 320), decided just before the court rose, illustrates the need for more explicit by-laws in urban districts if attempt is being made to prevent the waste of road space by negligent drivers of slow-moving vehicles. A man was held to be on the left side of the road when his off-side wheels kept within the centre line, although he had a space of 10ft. on the near side vacant.
We now pass to another set of subjects of outstanding interest, all of which fall under the generic heading of MASTER AND SERVANT. George v. Davies (104 L. T. Rep. 648; (1911) 2 K. B. 445) is really very important, for it deals with a so-called custom," in regard to which it has been impossible to form any very definite opinion. The plaintiff was a domestic servant, and she entered into the
defendant's household on Nov. 3 at a yearly wage, paid monthly. There was nothing explicitly agreed upon in regard to notice. In a fortnight's time she gave notice to leave at the end of the first month, and left on Dec. 3. The defendant refused wages for the month, whereupon the plaintiff commenced County Court proceedings. The plaintiff relied upon a custom that either party could end the service at the conclusion of the first fortnight, but she called no evidence in support of it. The learned County Court judge stated that he had previously taken judicial cognisance of the custom, and on appeal the Divisional Court thought the County Court judge was, under the circumstances, entitled to take such notice, and, further, that, apart from the custoin, the plaintiff, even though she left the defendant's service wrongfully, was entitled to recover the wages which had already accrued to her. A case illustrating a master's liability for his servant's slander may be mentioned in Glasgow Corporation v. Lorimer (104 L. T. Rep. 354; (1911) A. C. 209). The pursuer (the case was a Scotch appeal) proved that G., who was in the corporation's service as a tax collector, while exercising his duty, had demanded a tax and was tendered the balance due thereon. G. refused to accept the sum, demanded former receipts, and then accused the pursuer with having altered one so as to defraud the corporation. He threatened the pursuer with criminal proceedings, and repeated in another person's house the charge he had made. It was held by the House of Lords that no cause of action was disclosed, for there was nothing to show expressly or by implication that an expression of opinion by G. as to the genuineness of a receipt was within the scope of his employment. In regard to compensation cases, our readers have been kept up to date by comments as and when decisions of note were pronounced. We may then very briefly recall the chief of these cases, and refer our readers to our earlier comments. Skailes v. Blue Anchor Line Limited (103 L. T. Rep. 741; (1911) 1 K. B. 360) dealt with the meaning of the word remuneration" in sect. 13 of the Workmen's Compensation Act 1906 (in this section of our review hereinafter described shortly as "the Act). This word is to be regarded as synonymous with the phrase earnings" as used in the Act, and, in estimating a purser's remuneration, it is necessary to take into account a bonus received at the end of a voyage, at a fixed rate per month, when everything was reported to be satisfactory. Further, it is necessary to take into account sums received by him by way of perquisite on the sale of whisky. Pierce v. Provident Clothing and Supply Company (104 L. T. Rep. 473; (1911) 1 K. B. 997) shows that an accident sustained by a collector and canvasser whilst cycling in the course of his work was one to be deemed to arise "out of the employment within sect. 1 (1) of the Act. Astley v. R. Evans and Co. (104 L. T. Rep. 373; (1911) 1 K. B. 1036) extracted a principle from the Court of Appeal to the effect that, in considering what is sufficient evidence in a fatal accident to justify an inference that it had arisen "out of and in the course of the employment," it is necessary to distinguish between cases where death occurs at a time when the workman is engaged in his employer's work and cases when the workman is free to do what he likes without breach of contract. Where the last acts known are consistent with the continuance of work for the employer, the onus is on those who allege a cessation of work for the employer to prove their case. Kitchenham v. Owners of Steamship Johannesburg (noted ante, p. 125; (1911) A. C. 417) was a decision by the House of Lords, and it was held that a sailor drowned on returning to his ship while crossing the gangway had sustained an accident arising in the course of his employment. In another case, Hewitt v. Owners of the Duchess (noteď ante, p. 173), the sailor was also drowned whilst returning to his ship, but there was no evidence how he fell into the water. Held, owners not liable. Another case, Riley v. William Holland and Sons Limited (104 L. T. Rep. 371; (1911) 1 K. B. 1029), showed that a woman tripped and sustained injury on the stairs of a mill on Friday, being pay day. The usage of the mill was to make up wages to the Wednesday previous. It was held to be an accident arising out of and in the course of the employment. Warner v. Couchman (103 L. T. Rep. 693; (1911) 1 K. B. 351) was a very difficult case, and it raised the question whether frostbite suffered by a journeyman baker while out on his employer's rounds was an accident. It was held that, even assuming that there had been an accident, there was no peculiar danger encountered beyond that experienced on that day by other persons engaged in outdoor work, and it was held that the accident had not arisen out of the employment. Lord Justice Fletcher Moulton dissented from the above, and he laid it down that physiological injury resulting directly from work and in the reasonable performance of it is an injury by accident, and if the employment entails more than ordinary exposure to heat or cold and injury follows, then that injury arises "out of the employment." Lees v. Dunkerley (103 L. T. Rep. 467; (1911) A. Č. 5) settled finally a question which has frequently been the subject of professional doubt the question, viz., whether the doctrine of common employment applies as between fellow workmen. The facts were these: The respondents employed the appellants to guard some dangerous machinery. They acted negligently in regard to it, and through this cause a boy was seriously injured. Each of the appellants was convicted of a breach of the regulations under the Factory and Workshop Act 1901. A weekly sum was, on an arbitration appointed by the County Court judge, ordered to be paid by the respondents. The learned judge held that the appellants were liable to indemnify the respondents. The Court of Appeal affirmed this, and held that the "common employment defence does not apply where injury is caused to a servant by the breach of an
absolute duty imposed by statute upon his master for the servant's benefit. The House of Lords has concurred. Lord Loreburn thought that a dangerous and mischievous principle was sought to be set up. A man is responsible for his own negligence. The opposite view would entail that anybody could have a free hand to neglect his duty to his fellow-servant and escape with impunity from liabilty for damages for the consequences of his own carelessness or neglect of duty. Where the accident, however, in respect of which an employer has paid compensation is caused by the combined negligence of his own and other people's servants the employer cannot obtain an indemnity against that other person: (Cory and Son Limited v. France, Fenwick, and Co., 103 L. T. Rep. 649; (1911) 1 K. B. 114). Horn v. Lords Commissioners of the Admiralty (103 L. T. Rep. 614; (1911) 1 K. B. 24) lays it down that a workman who accepts a scheme of compensation certified by the Registrar of Friendly Societies is outside the Act altogether, and his rights, should some accident occur, are to be solely determined by the scheme. Two cases on the causes of death may be very briefly dealt with. Carolan v. Harrington (noted ante, p. 104; (1911) W. N. 134) shows that where there is a conflict of medical evidence a County Court judge can refer to a medical referee. It was urged that where, as here, death had supervened, no such reference was legal, but the Court of Appeal overruled such a narrow interpretation. Hawkins v. Powells Tillery Steam Coal Company (104 L. T. Rep. 365; (1911) 1 K. B. 988) decides that angina pectoris may give no cause for an award in the applicant's widow's favour where the husband was an elderly man whose heart was in a diseased condition entailing a possible fatal attack at any moment under slight exertion. Ball v. William Hunt and Sons Limited (104 L. T. Rep. 327; (1911) 1 K. B. 1048) was a case where a workman had lost the sight of one eye and subsequently the same eye met with a further accident which rendered it requisite to remove the eyeball. Being now recognised as a one-eyed man, he could not obtain work, although his capacity was in reality precisely what it had been before. The Court of Appeal by a majority held that injury which only made patent a pre-existing incapacity did not entitle the workman to compensation. Lord Justice Fletcher Moulton, in dissenting, thought that incapacity included such a case, and that a lessening of earning capacity was enough, although there was no diminution of physical capacity. McDermott v. Owners of Steamship Tintoretto (103 L. T. Rep. 769; (1911) A. C. 35) was before the House of Lords. M., a sailor, sustained an accident and was placed in a New York hospital, and was sufficiently recovered to be returned to England in about ten weeks. The shipowners paid wages from the date of the accident until he entered the hospital. They then paid surgical and maintenance expenses there. They were also willing to pay compensation in respect of his incapacity for work from the date of his return to England, but they argued that in assessing the compensation the County Court judge should regard the eight days' wages received from them between the date of the accident and the reception in hospital. The House of Lords, reversing the Court of Appeal, held that in respect of the payment of these wages or of maintenance and other expenses it is not necessary to have regard to the same in fixing the amount of the weekly payments. The case of Smith v. General Motor Cab Company Limited (1911) A. C. 188) raised a most interesting point, and discloses a hardship. The question was as to the relationship which subsists between a taxi-cab driver and the owners of the cab, and the consequent claim for compensation for accident. The evidence satisfied the House of Lords that the relationship was not that of master and servant, but that of bailor and bailee, and consequently the appellant, who was injured while driving, was held without title to compensation. New Monckton Collieries Limited v. Keeling (noted ante, p. 267) shows on the authority of the House of Lords that there is no presumption of law that a wife is a dependant upon her husband, but that it is in each case a question of fact.
MONEYLENDING cases have not been so prolific this year, and only brief mention need be made of this subject. Re Robinson; Clarkson v. Robinson (103 L. T. Rep. 857; (1911) 1 Ch. 230) is one of the chief decisions. The Court of Appeal there determined that a purchaser or assignee for value who has no notice of charges or securities which are void under the Moneylenders Act 1900, s. 2, is not in a better position than the original holder. The Act gives no protection to a bona fide assignee for value without notice except in sect. 1, sub-sect. 5. Whiteman v. Director of Public Prosecutions (104 L. T. Rep. 102; (1911) 1 K. B. 824) was a case where the appellant carried on a moneylending trade in the name of Hill at one address and under the name of Cobb at another. He was duly registered as Hill, and by a mistake of the registration authorities he was also registered as regards the other business. The question was raised on an information charging him with carrying on business as a moneylender in more than one name whether he could be rightly convicted, or whether the double registration was an answer to the charge. Lord Alverstone thought that it was no answer. Mr. Justice Avory, concurring, added that if a moneylender induces the authorities to register him in more than one name he will not be protected from the consequences of carrying on business in those registered names. The object of the legislation on this subject is to protect the borrower, and to prevent a person who has been dealing with a moneylender under the name of Hill from being deceived into thinking that when he goes to Cobb he is dealing with a different person.
MORTGAGE cases come next in our alphabetical arrangement. In Hall v. Hall (104 L. T. Rep. 529; (1911) 1 Ch. 487) Mr. Justice
Warrington had a rather difficult question to solve. The plaintiffs were executors of a wife's will, and they sought a declaration that they were entitled to a moiety of certain land included in a mortgage. The defendant was a transferee of the mortgage, and was the heir-at-law of a husband. The plaintiffs, as representatives of a wife, claimed against the husband's heir-at-law on the ground that the husband's share of one moiety of the property in his own right was primarily liable for the debt, and that the wife's moiety was discharged from it. It was held that when a wife concurs with her husband in mortgaging her property and the money is paid to the husband, as it appeared on the face of the document, the court will infer that the debt is his debt, unless there is evidence to rebut this, and the wife's property will be deemed to be surety for it. The rebuttal may take the form of showing that the money was in fact paid to the wife in such a way as to become her separate property, or that the husband applied it for her benefit. On the subject of redemption Mr. Justice Eve had to consider the implied liability of a purchaser of an equity of redemption to indemnify the vendor against the mortgage debt (Mills v. United Counties Bank Limited, 104 L. T. Rep. 632; (1911) 1 Ch. 669). The plaintiff had certain contingent interests under his father's will, and these were in mortgage to the bank and to his father-in-law. The bank sued the plaintiff and his partners in business for the recovery of money owing by them. The facts are intricate, and it is not for our purposes needful to set them out fully; but the principle emphasised in the decision is that the rule in equity, throwing upon a purchaser of an equity of redemption the implied obligation of indemnifying the vendor against the mortgage debt, is conditional upon the interest vesting in possession, and until that happens a person who claims the benefit of the implied covenant cannot sue. Where the assignment deed provides for an express and limited indemnity, the fuller indemnity otherwise implied is excluded. Rourke v. Robinson (103 L. T. Rep. 895; (1911) 1 Ch. 481) turned on the subject of reconveyance. On the 17th Aug. a mortgagor with other persons attended at a certain place by appointment with the mortgagee's solicitor to tender the sum due on the mortgage, and required that the reconveyance should then be handed over. It transpired that these were not ready, and the mortgagor declined to hand over the money without these documents. The mortgagee's solicitor threatened to proceed with a sale under contemplation, and refused to withdraw notices unless payment was made. The mortgagor sought redemption and an injunction to restrain the sale. Mr. Justice Warrington has held that it is a mortgagee's duty on being paid off, and contemporaneously with the payment, to hand over the deeds, together with a formal reconveyance. Consequently the court refused to allow the mortgagee in this case interest and costs subsequent to the 17th Aug., the date of the tender, and ordered him to pay the costs of the action. The case makes it clear that the courts will not take too narrow a view of a tender, such as that above, being conditional. It was not a tender of a less sum, but it was one for the full amount, and only clogged with a stipulation for an executed reconveyance, a thing to which a mortgagor is entitled. For a form of order where one of two mortgagees refuses to reconvey and the master is appointed to reconvey, it may be useful to briefly refer readers to Holme v. Fieldsend (1911) W. N. 111).
There are very few MOTOR-CAR cases worth comment this year, and the most important of these from the legal point of view is Brown v. Crossley (104 L. T. Rep. 429; (1911) 1 K. B. 603). A motorist's back lamp was out, and he was convicted and ordered to produce his licence for indorsement. He declined to do so, and was further charged with an offence under sect. 4 of the Motor Car Act 1903. It was held by a Divisional Court that this was an offence, and that the charge relating to the lamp was connected with 66 an offence in connection with the driving of a motor-car within sect. 4. The Lord Chief Justice in this case makes a useful review of certain earlier decisions, and especially dwelt on one for which he was himself responsible, and the learned judge differentiates this case from those offences of a minor character, such as the accidental going out of a lamp where a motor was standing in the road, and he held that "it is going much too far to suggest that the mere accidental going out of a lamp will result in a liability to have the licence indorsed."
On the occasion of a recent discussion by the members of the Drogheda Corporation as to the filling up of a post that had been vacant for some time, one of the councillors casually asked the mayor what was the meaning of the word "job." The mayor was unable to afford the required information, and the town clerk was then requested to assist the corporation. He promptly produced a dictionary and proceeded to read to his board the following definition of "job": "A sudden stab with a pointed instrument; to strike or stab with a sharp instrument." This definition was considered irrelevant, one of the members remarking that what bad been read was the definition of "jab." The following further definition was then read: "A piece of work, specially of a temporary nature; anything to be done, whether of more or less importance; an undertaking professedly for the public good, but really for one's own." This definition seemed to satisfy the curious councillor, and the discussion ended.
A rather unusual point came before Mr. Justice Dodd in the case of York street Flax Spinning Company v. Harbison, which came before him at the recent Belfast Assizes. The plaintiffs had purchased from the defendant a quantity of flax in market overt. The defendant subsequently was indicted for the larceny of the flax from one Robinson, and for receiving, and he was found guilty of receiving the flax knowing it to have been stolen and convicted. At the trial of the indictment the judge made an order for the return of the flax to Robinson, and the plaintiffs paid Robinson the agreed value of the flax. They then, relying on sect. 100 of the Larceny Act 1861, Bued the defendant for the amount that they had paid him. The defendant, resisting this claim, relied upon sect. 24 (2) of the Sale of Goods Act 1893, and contended that a good title to the flax had vested in him and that it could not be devested except by a convio. tion for larceny. Mr Justice Dodd decided against the defendant, holding that the conviction for receiving was enough, and that Beut. 100 of the Larceny Act 1861 covered the case.
A CASE of some importance to railway travellers (Simmonton v. Belfast and Co. Down Railway) was decided recently by Mr. Justice Dodd. The plaintiff sued the defendant company for the cost of a conveyance from Comber to Belfast under the following circumstances: The plaintiff and his wife had travelled by the defendant company's train from Belfast to Comber. The last train from Comber to Belfast leaves the former place at 10 40 p m., and the plaintiff was on the "up platform of Comber Station at 10.31 p.m, intending to return to Belfast by the last train. At 10.35 p.m. a train from Belfast arrived at the "down" platform, and for about six minutes previously to the departure of the train for Belfast the centre line was occupied by a goods train, so that the plaintiff's view of the "down" platform was obstructed. There were no rail way officials on the "up" platform. The 10.40 train left the "down" platform, and the plaintiff was obliged to hire a conveyance to take himself and his wife to Belfast. The learned judge held that there was negligence on the part of the defendant company, and decided in favour of the plaintiff.
THE Local Government Board for Ireland have received complaints from time to time from boards of guardians in different parts of Ireland as to the action of magistrates at petty sessions in refusing to adjudicate in prosecutions brought at the instance of guardians where the latter were not represented by a solicitor. The board in their circular letter of the 27th April 1877 set out the opinion of the then law adviser (now Lord Justice Holmes) that where the guardians are themselves named as complainants in the summons, they must appear by attorney, but that in most of the cases in which guardians are called on to prosecute they may avoid the necessity of employing an attorney by not using their own corporate name as complainante, and by using that of one of their officers instead, and that in such cases the officer in whose name the summons is brought can conduct the prosecution himself. In a recent case the Birr Guardians directed their relieving officer to prosecute a man who had deserted his wife and children. The magistrates refused to allow the relieving officer to present or conduct the case, and they also refused to state a case for the High Court. The matter was brought to the attention of the Local Government Board, and that body took the opinion of the Solicitor-General for Ireland, who wrote: "It is difficult to understand the position of the magistrates. Their refusal to bear the complainant the relieving officer-by himself, without counsel or solicitor, was in direct opposi tion to the plain words of sect. 9 of the Petty Sessions (Ireland) Act 1851. Possibly the magistrates were under the impression that although the relieving officer was. the complainant, he was named as such merely as the officer of the guardians, and that they should be regarded as the real complainante. But this point is against the decision in Duncan v. Jones (16 Cox C. C. 267), where the complainant was an inspector for the Prevention of Cruelty to Animals, and he was held entitled to conduct the osse himself." In the Birr case the relieving officer applied to the King's Bench Division for a conditional order for a writ of mandamus to compel the magistrates to hear the case, and the latter, acting on legal advice, did not show cause against the order.
COMMENTS ON CASES.
In the winding-up of a company and the distribution of its property among its shareholders, "surplus assets may be words of equivocal import from a legal point of view. But we question whether many ordinary men of business would be disposed to put any other Construction upon them than as meaning assets after discharging all debts and other liabilities of the company. which should include repayment to the shareholders of the whole of the capital subscribed by them. In other words, the expression would be treated as equiva. lent to "surplus profits." The uninitiated would very naturally be prone to reason in this way: A company in the usual course has liabilities and it has assets. The former consist of what it owes to its creditors and what belongs to its shareholders. The latter are represented by such property as it posSESSON. The excess of the assets over the liabilities constitutes the company's “surplus assets.” To the lawyer, however, versed in the various legal decisions on the subject, the point is by no means so easily determined off-hand. He is aware that the expression is an ambiguous one, and that it is not a term of art having a definite technical meaning, as was pointed out in the most recent case in which the question was raised, that of Re Ramel Syndicate Limited (104 L. T. Rep. 842). The expression may have a different meaning from that ascribed to it by persons unacquainted with what has been laid down by the courts. According to the intention that has to be gathered from the articles of association of each company, the words may denote the surplus remaining after payment of debts and the costs of the winding-up, irrespective of share capital. Thus, as was said by Lord Justice Stirling in Re Crichton's Oil Company Limited (86 L. T. Rep. 787, at p. 789; (1902) 2 Ch. 86), in his opinion, primâ facie "surplus assets" in the articles of association in that case meant "that which remains after the claims of creditors of the company and the costs of the winding-up have been satisfied." In short, the true construction depends entirely upon the meaning to be attributed to the clause in the articles of associa tion in which those debatable words appear. The blame for any uncertainty that exists must, therefore, fall upon framers of such clauses who have used, in a wholly erroneous sense, an expression that otherwise would be perfectly plain. It was in Re New Transvaal Company Limited (75 L. T. Rep. 272; (1896) 2 Ch. 750) that the view was expressed by Lord Justice (then Mr. Justice) Vaughan Williams, sitting as an additional judge of the Chancery Division, that surplus assets" might have an alternative meaning. His Lordship there entirely dissented from the suggestion that the term had a recognised technical meaning. And in that case recoupment of the capital contributed by the shareholders was held by the learned judge to be essential before the surplus assets were ascertainable. That construction was adopted in Re Peabody Gold Mining Corporation Limited (104 L. T. Jour. 128; (1897) W. N. 170), and, lastly, in Re Ramel Syndicate (ubi sup.). On the other hand, in Re Sheppard's Corn Malling Company Limited; Ex parte Lowenfeld (70 L. T. Rep. 3), it was decided by the Court of Appeal that there was no reason for giving the words "surplus assets " in one of the elauses of the articles of association of a company any other than their primá facie meaning-namely, all the capital of the company, including unpaid calls, which might remain after debts, liabilities, and costs of the company had been discharged. There, however, the repayment of the whole of the paid-up capital out of the surplus assets was expressly directed by the clause in question, so that "liabilities" could not refer to that portion of the company's accounts. Similarly, in Re AngloContinental Corporation of West Australia Limited (75 L. T. Rep. 157; (1898) I Ch. 327), the paid up capital was directed to be provided for out of the surplus assets by the express words of the clause relating to the distribution of those assets. But to prescribe that paid-up capital shall be provided for out of surplus aseets is seemingly a contradiction in terms. It is the assets, not the " surplus assete," that have to provide for that capital, as well as for any other liabilities of a company. Should there be some balance remaining after satisfying those wants, the came would strictly be "surplus assets." Such a form, however, of surplus assets clause has, as was remarked by Mr. Justice Wright in the case last cited, been adopted with variations since the decision of the House of Lords in Birch v. Cropper (61 L. T. Rep. 621; 14 App. Cas. 525), with the view to avoiding the effect of that decision. But neither in Re Ramel Syndicate (ubi sup.) nor in the authorities which were followed in that case was there any direction as to providing for the paid-up capital out of the surplus assets.
MISCELLANEOUS PRECEDENTS (continued). Release and Indemnity by Residuary Legatees.
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