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HARLEY, HARRY H., Piccadilly. Aug. 25.
HARRIS, ISRAEL (otherwise Isidore Harris, trading as M. Harris), Fashion
st, Spitalfields, wholesale rag merchant. Aug. 26.
SMALL, EDWARD, late Douglas-rd, Willesden-la, cabdriver. Aug. 24.
VANDERLINDE, SOLOMON HENRY, Grosvenor-rd, Canonbury, meat salesman.
WALL, EDGAR G., Broad-st-av. Aug. 24.
WILLIAMS, J. C. S., Lombard-st. Aug. 24.
To surrender at their respective District Courts.
BATES, CHARLES WILLIAM, Birmingham, silversmith. Ct. Birmingham. Aug. 25.
BACK, JOHN, Dartmouth, builder. Ct. Plymouth. Aug. 24.
COLLIN, GEORGE (trading as G. Collin and Co.), Leicester, coal merchant.
EVANS, RICHARD, Kerry, labourer. Ct. Newtown. Aug. 26.
GOOD, GEORGE, Kingston-upon-Hull, builder Ct. Kingston-upon-Hull.
HALL, JOHN WILLIAM, Bury St. Edmunds, commission agent. Ct. Bury
HARRIS, THOMAS, late Vaynor, licensed victualler.
Ct. Merthyr Tydfil.
ILLINGWORTH, JOSEPH, Cawthorne, draper. Ct. Barnsley. Aug. 25.
RECEIVING ORDER RESCINDED.
HINGLEY, GEORGE SILAS; HINGLEY, SILAS; HINGLEY, WILLIAM; HINGLEY,
ADJUDICATIONS. GAZETTE, AUG. 25.
BARBER, HUBERT CORNELIUS, Pagham, grocer. Ct. Brighton. Aug. 21.
BENDING, MARK, Cadeleigh, farmer. Ct. Exeter. Aug. 19.
BELLAMY, PERCY RICHARD, Thornton-le-Fylde, farmer.
and Ct. Preston.
CHALLINGSWORTH, WILLIAM (trading as Challingsworth and Co.), Birmingham, brassfounder. Ct. Birmingham. Aug. 22.
COLLEY, FRED, Kingston-upon-Hull, fish dealer. Ct. Kingston-upon-Hull. Aug. 23.
DIXON, JOHN, Great Grimsby, late confectioner. Ct. Great Grimsby. Aug. 19.
HIGHAM, PERCY JOSEPH, Fulham-rd, Fulham, hosier. Ct. High Court. Aug. 23.
HERRING, CHARLES EDWARD, Stubton, farmer. Ct. Nottingham. Aug. 22. HENNINGS, EDWIN HENRY, Studley, farmer. Ct. Warwick. Aug. 22. JOHNSON, FRANK ALEXANDER, late Paternoster-row, sports dealer. Ct.
High Court. Aug. 23. JOHNSON, GEORGE THOMAS (trading as G. T. Johnson and Son), Liverpool, sheet iron keg manufacturer. Ct. Liverpool. Aug. 23. MACVEAN, DONALD, Acton Hill, general agent. Ct. Brentford, Aug. 19. MITCHELL, WILLIAM THOMAS, Todmorden, painter. Ct. Burnley. Aug. 22. MARTIN, WILLIAM, late Heathfield, grocer. Ct. Eastbourne and Lewes. Aug. 22.
O'SHEA, GERARD HENRY WILLIAM, Grafton-st, Piccadilly. Ct. High Court. Aug. 19.
PAWLETT, WILLIAM, Great Grimsby, late general dealer. Ct. Great Grimsby.
PICKERING, LEONARD, Sheffield, beerhouse keeper Ct. Sheffield. Aug. 23. PAGE, JESSIE, Gresham, grocer. Ct. Norwich. Aug. 22.
RUSSELL, ROBERT WILLIAM HUGH (trading as Robert Osborne and Co.),
SWINSCOE. JOHN REGINALD, Sheffield, solcitor. Ct. Sheffield. Aug. 22.
PERCIVAL KIRBY, East Twickenham, commission. agent. Brentford. Aug. 23. WHETSTONE, HERBERT BAKEWELL, Ilketshall Saint Lawrance, director of a public company. Ct. Great Yarmouth. Aug. 21.
WILMOT, LAWRENCE COATES (late trading as Wilmot and Cook), Kingstonupon-Hull, tailor. Ct. Kingston-upon-Hull. Aug. 21.
WALKE, RICHARD, Plymouth, baker. Ct. Plymouth. Aug. 22.
GAZETTE, AUG. 29.
ANTOINE, GUSTAVE, London-wall. Ct. High Court. Aug. 21.
ASHBURNER, ROBERT WILLIAM, Ulverston, solicitor. Ct. Barrow-in-Furness and Ulverston. Aug. 25.
BATES, CHARLES WILLIAM, Birmingham, silversmith. Ct. Birmingham. Aug. 25.
BARTON, JAMES (trading as Barton. Lees. and Co., and Lees and Co.), Liverpool, solicitor. Ct. Liverpool. Aug. 26.
BACK, JOHN, Dartmouth, builder. Ct. Plymouth. Aug. 24.
BILL, GEORGE OLIVER, Manchester, fancy goods agent. Ct. Salford. Aug. 26.
COLLIN, GEORGE (trading as G. Collin and Co.), Leicester, coal merchant.
CLARKE, GEORGE WILLIAM, late Liverpool, managing director of a limited
Ct. Leicester. Aug. 25.
company. Ct. Liverpool. Aug. 25.
EVANS, RICHARD, Kerry, labourer. Ct. Newtown.
Aug. 26. FELDON, GEORGE, Upper-marsh, Lambeth, box manufacturer.
Court. Aug. 24.
GOOD, GEORGE, Kingston-upon-Hull, builder.
HALL, JOHN WILLIAM, Bury St. Edmunds, commission agent. Ct. Bury
RAE, JOHN KIPPEN, Nottingham, plumber. Ct. Nottingham. Aug. 25.
SCRASE, ALFRED PRETTY, late Burgess Hill. Ct. Brighton. Aug. 24. STEWARD, EDWARD HARDING, Brighton, late of the Royal Engineers. Ct. Brighton. Aug. 24.
TAYLOR, RICHARD, Manchester, wheelwright. Ct. Manchester. Aug. 24. TYERMAN, GEORGE, Thorpe, blacksmith. Ct. Stockton-on-Tees. Aug. 25. THOMPSON, OLIVER, Knottingley, shipbuilder. Ct. Wakefield. Aug. 24. VANDERLINDE, SOLOMON HENRY, Grosvenor-rd, Canonbury, meat salesman. Ct. High Court. Aug. 25.
VAN MINDEN, RAPHAEL (otherwise Ralph Albert Minden), late Nantwich,
WARE, ARTHUR JOHN, Plumstead, builder. Ct. Greenwich. Aug. 23.
BIRTHS, MARRIAGES, AND DEATHS
RANKIN. On the 23rd ult., at 46, FitzJames-av, W., the wife of G. C. Rankin, Barrister-at-law, of a daughter. WALDO. On the 24th ult., at 40, Lansdowne-rd, Holland Park, W., the wife of Frederick Joseph Waldo, M.D., Barrister-at-law, of a daughter. WILD. On the 23rd ult.. at 143, Muswell-av, Muswell Hill, N., to Mr. and Mrs. A. F. V. Wild, a son.
PATRICK-MOORE.-On the 17th ult., at Finvoy Parish Church, Norman
BURBURY.-On the 18th ult., at 15, Melbury-rd, Kensington, Samuel
WILLIS. On the 22nd ult., at 18, Belmont Park, Lee, Kent, His Honour Judge William Willis, K.C., in his seventy-seventh year.
FIX, JOHN EDWARD, Cherry Garden-st, Bermondsey, baker. Ct. High Court. Aug. 22.
GEACH, GEORGE, Arundel-st, Strand, company promoter. Ct. High Court. Aug. 24.
GUEST, STANLEY, late Whitwell-rd, Plaistow, publican's manager. Ct. High Court.
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Vol. CXXXI. -No. 3571.
Re THOMAS; BARTLEY v. THOMAS.Administration Practice
Common judgment in creditor's administration action
KING'S BENCH DIVISION. PRATT (app) v. MARTIN (resp.). Game-Trespass in pursuit ofSending dog on to another's land EARL OF MOUNT EDGCUMBE (app.) V. COMMISSIONERS OF INLAND REVENUE (resps.). Revenue Stamp duty-Lease REX v. GOVERNOR OF BRIXTON PRISON: Ex parte THOMPSON. Extradition-Requisition for surrender-Validity
HILL (on behalf of the Department of Agriculture and Technical Instruction for Ireland) (app.) v. PHOENIX VETERINARY SUPPLIES LIMITED (resps.).-Adulteration
WILLIAMS v. EVANS AND ANOTHERWill-Probate-Action for revocation-Knowledge of facts-Estoppel -Laches.........
DIVORCE BUSINESS. QUARTERMAINE v. QUARTERMAINE AND GLENISTER.-Divorce-Decree
nisi-Condonation Reconciliation of petitioner and respondent
LEADING ARTICLES, &c.
TO READERS AND CORRESPONDENTS... 4'1 LEADING ARTICLES.-Topics of the Week-Noteworthy Decisions of
the Judicial Year-Increase of Rates and Charges by Railway Companies" Opening the Commission " IRISH NOTES
COMMENTS ON CASES....................................................... 416 THE CONVEYANCER........................... 4 17 OCCASIONAL NOTES........................... 419 LAW LIBRARY.............................................................. PARLIAMENTARY SUMMARY. - The Late Judge Willis in the House of Commons
COUNTY COURTS.-Sittings of the Courts.... €2 GENERAL INTELLIGENCE.
MOSES (app.) v. RAYWOOD (resp.).-
In the Goods of BARON VON
LEGAL OBITUARY.-Mr. John Rule
78 BIRTHS, MARRIAGES, AND DEATHS 428
The Law and the Lawyers.
It was inevitable that the subject of the recent strike should have formed matter for discussion by the Association of Chambers of Commerce at their sittings in Dublin. The debate was opened in the only possible manner in which a subject of so much importance should be treated. There was in it no touch of bitterness, and no desire to avenge injuries. The speaker, indeed, admitted that there were grievances requiring redress, and was willing that every reasonable opportunity should be afforded for the purpose. Evidence, however, is adducible from many centres to the effect that the irresponsibility with which trade unions are now clothed must be modified in some way. The rules regarding strikes were simply disregarded by the unions, and, in spite of this, they enjoyed a special indulgence as regards common law liabilities. The Liverpool city justices have received and considered special reports as to "peaceful picketing," and they recommend that this subject should be treated as one outside politics, and that justices all over the country should combine to make a representation to Parliament to amend the existing law. It is in the better interests of the trade union movement itself, as was pointed out by a Dublin speaker, that power and responsibility should not be severed. No community could long exist were there to be repetitions of the scenes so lately enacted, and no statesman, whatever his party politics, could consent to legislation which should bring them about. The resolution passed at Dublin seems to afford some reasonable means for discovering a solution of the problem. It calls for the creation of a Royal Commission to inquire into the working of the Trades Disputes Act 1906. The result would be to show whether in fact the scenes of intimidation and disorder are or are not the direct results of that legislation, and, in the light of past experience, the public would be better able to Second Sheet.
judge as to the necessity for revising the very special favours conferred on one section of the community unless the same could be made consonant with the peace and prosperity of all sections.
SINCE the operations of the American trusts have been extended to the British Dominions, legislation has become necessary to limit their powers. One of the latest examples is an Act passed by the New Zealand Parliament. It was in 1896 that the activities of the International Harvester Trust first led the Parliament to take action, which was specifically limited to dealings in agricultural implements. The New Zealand Acts have retained that characteristic, which distinguishes them from the Canadian and Australian laws, in applying only to certain goods. The last Act for the repression of monopolies in trade or commerce applies to the sale of agricultural implements, coal, meat, fish, flour, oatmeal, and the other products or by-products of the milling of wheat or oats, petroleum or other mineral oil (including kerosene, naphtha, and the other products or by-products of any such oil), sugar, and tobacco (including cigars and cigarettes). A commercial trust is defined to be any association or combination of any number of persons "having as its object or as one of its objects that of (1) controlling, determining, or influencing the supply or demand or price of any goods in New Zealand or any part thereof or elsewhere, or that of (2) creating or maintaining in New Zealand or any part thereof or elsewhere a monopoly, whether complete or partial, in the supply or demand of any goods." It is an offence against the Act to make any special concession in consideration of dealing only with a particular person or in a particular class of goods. Similarly, a refusal to deal except upon disadvantageous or relatively disadvantageous terms is an offence. The sale of goods at a price fixed by a trust which is unreasonably high is also punished by the Act. The price of any goods is deemed by the Act to be unreasonably high "if it produces or is calculated to produce more than a fair and reasonable rate of commercial profit to the person selling or supplying, or offering to sell or supply, those goods, or to his principal, or to any commercial trust of which that person or his principal is a member, or to any member of any such commercial trust." The punishment for an offence against the Act is a fine of £500. Two or more persons concerned in the same offence are each liable for the amount of the fine, recoverable by an action in the Supreme Court, which has power to reduce the amount and also grant a perpetual injunction against the repetition of the offence.
THE promotion of Mr. REDMOND BARRY, the AttorneyGeneral for Ireland, who has since 1906 been member in the House of Commons for North Tyrone, to the Irish Lord Chancellorship will leave the Administration without an Irish law officer of the Crown in the House of Commons. Mr. CHARLES O'CONNOR, who succeeds Mr. BARRY in the position of Attorney-General, is not a member of the House of Commons. Administrations in recent years have not infrequently been without the advantage of the assistance of Irish law officers of the Crown in Parliament. In the Gladstone Administration (1868-1874) Mr. (Lord Justice) C. R. BARRY, first appointed Solicitor-General and afterwards Attorney-General, was unable to get a seat in the House of Commons. One or other of the Irish law officers, however, was in Parliament until the session of 1873, when the Government was unable to get either of them returned. From Feb. 1874 until Feb. 1877, under the Disraeli Administration, but one of the two Irish law officers was able to get a seat in the House of Commons; and in the GladstoneRosebery Administration (1892-1895)[no Irish law officer was a member of the House of Commons. Administrations have
in recent times had only one English law officer of the Crown in the House of Commons. Thus, Sir JOHN (Lord Chancellor) CAMPBELL lost his re-election for Dudley on being appointed Attorney-General in 1834, and was for a considerable time-till the June following-without a seat; and Sir HARDINGE GIFFARD (Lord Chancellor HALSBURY), appointed Solicitor-General for England in Nov. 1875, could get no seat till March 1877. From the Union in 1800 till Lord Normanby's Administration in 1835, the Irish law officers were not invariably changed with the Government, and were neither obliged nor expected to enter the House of Commons. Their position was non-political-Mr. SAURIN was Attorney-General from 1807 till 1822, and Mr. (Chief Justice) BUSHE was Solicitor-General from 1805 till 1822until they entered Parliament, when they were required to support the Government or to resign, as in the case of Mr. (Lord Chancellor) PLUNKET in 1807. But since 1835 the system of having an exclusive party official Bar has prevailed in Ireland, and the law officers of the Crown retire with the Ministry. The Irish law officers must endeavour to get a seat in Parliament, though their inability to find a constituency does not necessitate their resignation of
THE Right Hon. Lord EVERSLEY, better known as Mr. GEORGE JOHN SHAW-LEFEVRE, who has written a very learned letter, which appears in the Times of the 26th ult., directing attention to the decisions on the 15th July, by the House of Lords, affecting fisheries in the river Wye and Lough Neagh, co. Antrim, and their momentous effect on the relations between immemorial custom and the law, comes of a legal stock. His grandfather, Mr. CHARLES SHAW-LEFEVRE, who was for nearly a quarter of a century a member of the House of Commons, was a barrister of Lincoln's-inn, who attained considerable eminence in the practice of his profession. Lord EVERSLEY, who was bred to the Bar, at which he practised before an appointment in the Ministry as Civil Lord of the Admiralty when he was in the early thirties led him to gravitate towards an exclusive devotion to public life, is, like his uncle and his father, a Bencher of the Inner Temple. His uncle, Mr. CHARLES SHAWLEFEVRE (Viscount EVERSLEY), before he became Speaker of the House of Commons in 1839, was for twenty years a practising barrister of the Inner Temple. His father, Sir JOHN SHAW-LEFEVRE, K.C.B., who was Senior Wrangler at Cambridge, was, before he became Under-Secretary for the Colonies when thirty-six, a practising barrister at the Inner Temple, of which he was a member, and filled the position of Clerk of Parliaments from 1856 till 1875. Viscount EVERSLEY as Speaker and Sir JOHN SHAW-LEFEVRE as Clerk of Parliaments found that their legal training served them in good stead; and the present Lord EVERSLEY, in his exposi tion of the claims of the fishermen of the Wye and of Lough Neagh, has utilised with great effect his knowledge of legal principles and practice.
INCREASE OF RATES AND CHARGES BY
In view of a Royal Commission having been appointed to inquire into the pay and hours of labour of railway servants, and the promise of the Government, in the event of the commission advocating an increase of wages, to introduce legislation allowing the railway companies to increase their charges slightly, it becomes a question of some interest to review the present law on the subject.
Railway companies are empowered by their special Acts to take certain specified tolls for the carriage of goods and persons on their railway, and for the use of such railway. But a company may not at any time demand or take a greater amount of toll, or make a greater charge for the carriage of passengers or goods, than they are by the Railways Clauses Act 1845, s. 92, and their special Act authorised to demand. If on demand any person fails to pay the tolls due in respect of any carriage or goods, the company may detain and sell such carriage or all or any part of the goods. The word "toll" includes "any rate or charge or other payment payable under the special Act" for any passenger, animal, or goods conveyed
on the railway. The charges for the conveyance of merchandise and animal traffic are now made under the Rates and Charges Acts of the several railway companies, passed in 1891 and 1892. What determines whether a charge is a rate or a toll is not who provides the carriage or who provides the engine, but who are the carriers: (Watkinson v Wrexham, Mold, and Connah's Quay Railway Company, 3 Ry. & Can. Cas. 5). The toll olauses of a railway company's special Act are controlled by the general clause limiting maximum charges (Chatterley Iron Company v. North Staffordshire Railway Company, 3 Ry. & Can. Cis. 238). The charges of railway companies in their character of carriers consist mainly of remuneration for the mere conveyance of goode, and this remuneration includes tolls for the use of the railway, for the use of carriages and wgggons, and for the supply of locomotive power. The amount of these tolls is fixed by statute, and a maximum rate comprising the several tolls is, with few exceptions, also fixed by statute, and is usually somewhat less in amount than the aggregate of the three separate tolls, probably because it was supposed that if the company provided both carriages and locomotive power they might make an easier profit than if either of these were supplied by the trader. When the earlier Railway Acts were passed it was supposed that the companies would be, like the canal companies, mere owners of the route, and their maximum tolls were fixed accordingly. But they subsequently became carriers, and as carriers provided stations, sidings, warehouses, cranes, and other fixed plant which had in many cases previously been provided or leased by private firms : (Report of the Select Committee on Railways, 1882).
A list of all tolls authorised by the special Act, and exacted by the company, must be exhibited on boards at the stations or places where they are payable (Railways Clauses Act 1845, e. 93); and the company must set up and maintain milestones or posts along the whole line of the railway, at a distance of a quarter of a mile from each other (Ib., 8. 94); otherwise, no tolls may be demanded or taken for the use of the railway: (Ib., 8. 95). The company must also keep at each of its stations books showing every rate for the time being charged for the carriage of traffic, other than passengers and their luggage, from that station to any place to which it books, and stating the distance for which any such rate is charged, and such books must be open to the inspection of all persons without payment of any fees; and the commissioners may from time to time, on the application of any person interested, make orders with respect to any particular description of traffic, requiring the company to distinguish in such books how much of each rate is for the conveyance of the traffic on the railway, including therein tolls for the use of the railway, for the use of carriages, or for locomotive power, and how much is for other expenses, specifying the nature and detail of such expenses (36 & 37 Vict. c. 48, s. 14; and see Pickfords Limited v. London and North-Western Railway Company, 92 L. T. Rep. 607). The company is liable to 8 penalty of £5 a day for every offence against the provisions of this section. As to passenger fares, the Regulation of Railways Act 1868, s. 15, requires every company to exhibit lists in the booking-office of each of its stations, containing the fares from that station to every place for which passenger tickets are there issued; and, subject to such exceptions as may be allowed by the Board of Trade, every passenger ticket must bear upon its face the fare chargeable for the journey for which it is issued, the company being liable to a penalty of 40s. for every ticket issued in contravention of this provision: (52 & 53 Vict. c. 57, s. 6).
Railway companies have power to vary their rates as they may think proper, provided their charges for services rendered in pursuance of their statutory obligations are the same to all, and do not exceed the maximum sums they are authorised by their Aots to charge. A schedule of the statutory maximum rates and charges authorised to be taken by a railway company for the conveyance of goods contained a provision that the company should not be under obligation to carry non-perishable goods by passenger train. A section of the special Act of the company provided that all tolls should be charged equally to all persons. The company announced to the public their willingness to carry tailors' clothing by passenger train at a "collected and delivered rate specified in a scale of charges which they published. The plaintiffs, who were common carriers at Bristol, sent parcels of tailors' clothing from Bristol to Southampton by the company's passenger train, having themselves collected the goods at Bristol and handed them over to the company at the passenger train. The plaintiffs paid to the company, under protest, the scale charge; and brought an action against them for money had and received, claiming to be entitled to a rebate from the defendants in respect of the collection of the goods at Bristol. It was held by the Court of Appeal that as the company were under no statutory obligation to carry the goods by passenger train, the plaintiffs were not entitled to any rebate: (Stone and Co. v. Midland Railway Company, 90 L. T. Rep. 194).
A railway company must within one week after application in writing made to the secretary of any railway company by any person interested in the carriage of any merchandise which has been or is intended to be carried over the railway of such company render an account to the person so applying in which the charge made or claimed by the company for the carriage of such merchandise shall be divided, and the charge for conveyance over the railway must be distinguished from the terminal charges (if any), and from the dock charges (if any), and if any terminal charge or dock charge is included in such account the nature and detail of the terminal expenses or dock charges in respect of which it is made must be specified: (Railway and Canal Traffic Act 1888, s. 33 (3). Any company failing to comply with the provisions of this section is liable, for each offence, and, in
the case of a continuing offence, for every day during which the offence continues, on summary conviction to a penalty not exceeding £5: (lb., s. 33 (7).
The fact that there are ordinary rates in practical operation on a railway for the carriage of goods with ordinary liability is very strong evidence that an agreement between the railway company and a customer for the carriage of goods at another rate is reasonable. A customer, having a bona fide alternative of sending his goods at ordinary rates, by a contract in writing agreed to free and relieve a railway company "from all liability for loss or damage by delay in transit, or from whatever other cause arising," in consideration of the company carrying his goods at a rate one-fifth lower than the ordinary rate. It was held that the contract was reasonable, and relieved the company from liability for loss through delay in transit caused by the negligence of their servants: (Manchester, Sheffield, and Lincolnshire Railway v. Brown, 50 L. T. Rep. 281).
If a railway company charge for conveyance of goods the extreme sum sanctioned by their special Act, they cannot limit their liability as insurers. But if a railway company offer to carry at less than their maximum rates, in consideration of being relieved from loss by accidents, and give the customer an alternative of carrying his goods at the maximum or insured rate, then such a condition, if accepted by the consignor, is reasonable and valid. But even at the lower alternative rate the company cannot contract themselves out of liability for gross negligence.
Where any question or dispute arises, involving the legality of any toll, rate, or charge, charged or sought to be charged for any goods or animals by a railway or canal company, the Railway and Canal Commissioners have jurisdiction to hear and determine the same, and to enforce payment of such toll, rate, or charge, or so much thereof as they decide to be legal: (Railway and Canal Traffic Act 1888, s. 10). The commissioners also have jurisdiction to hear and determine any question or dispute with respect to the terminal charges of any railway company where such charges have not been fixed by Act of Parliament, and to decide what is a reasonable sum to be paid to any company for loading and unloading, covering, collection, delivery, and other services of a like nature: (Railway and Canal Traffic Act 1873. 8. 15).
Whenever any person receiving or sending or desiring to send goods by any railway is of opinion that the railway company is charging him an unfair or an unreasonable rate of charge, or is in any other respect treating him in an oppressive or unreasonable manner, such person may complain to the Board of Trade. The Board of Trade, if they think that there is reasonable ground for the complaint, may thereupon call upon the railway company for an explanation, and endeavour to settle amicably the differences between the complainant and the railway company. For this purpose the Board of Trade may appoint either one of their own officers or any other competent person to communicate with the complainant and the railway company, and to receive and consider such explanations and communications as may be made in reference to the complaint. A complaint under this section may be made to the Board of Trade by any of the authorities mentioned in sect. 7 of this Act in any case in which, in the opinion of any of such authorities, they or any traders or persons in their district are being charged unfair or unreasonable rates by a railway company; and all the provisions of this section shall apply to a complaint so made as if the same had been made by a person entitled to make a complaint under this section: (Railway and Canal Traffic Act 1888, s. 31).
In order to secure greater uniformity in the classification of merchandise traffic and the maximum rates and charges of the various companies under their special Acts, the Railway and Canal Traffic Act 1888 provided for the revision of all the existing classifications and rates by Provisional Orders of the board to be confirmed by Act of Parliament. Sect. 24 provided that, notwithstanding any provision in any Act, every railway company should, within six months from the passing of the Act, or such further time as the Board of Trade might in the particular case permit, submit to the Board of Trade a revised classification of merchandise traffic, and a revised schedule of maximum rates and charges applicable thereto, proposed to be charged by such company, and should fully state in such classification and schedule the nature and amounts of all terminal charges proposed to be authorised in each class of traffic, and the circumstances under which such terminal charges were proposed to be made; and that, in the determination of the terminal charges, regard should be had only to the expenditure reasonably necessary to provide the accommodation in respect of which such charges were made, irrespective of the outlay actually incurred by the company in providing such accommodation. The section further provided that if, after hearing all parties whom the Board of Trade considered entitled to be heard, the Board of Trade should come to an agreement with the company, it should embody the agreed classification and schedule in a Provisional Order, and procure a Bill to be introduced for the confirmation thereof. Provisional Orders were, during 1891 and 1892, made and confirmed, in pursuance of the above provisions, in respect of nearly all the railway companies of the United Kingdom. By these orders all merchandise traffic is divided into eight classes-A, B, C, 1, 2, 3, 4, and 5-the rates in the first mentioned group being the lowest, and those in the last the highest. The classification was arranged by considering the values, liability to damage in transit, weight in proportion to bulk, and cost of handling. These rates are the maximum; the actual rates being in many cases lower.
The books, tables, or other document in use for the time being containing the general classification of merchandise carried on the railway of any company shall, during all reasonable hours, be open
to the inspection of any person, without the payment of any fee, at every station at which merchandise is received for conveyance, or where merchandise is received at some other place than a station, then at the station nearest such place, and the said book, tables, or other document as revised from time to time shall be kept on sale at the principal office of the company at a price not exceeding 18.: (Railway and Canal Traffic Aot 1888, s. 33 (1). Where a railway company intend to make any increase in the tolls, rates, or charges published in the books required to be kept by the company for public inspection under sect. 14 of the Regulations of Railways Aot 1873, or the Act of 1888, they must give by publication in such manner as the Board of Trade may prescribe at least fourteen days' notice of such intended increase, stating in such notice the date on which the altered rate or charge is to take effect; and no such increase in the published tolls, rates, or charges of the railway company are to have effect unless and until the fourteen days' notice required under this section has been given: (lb., s. 33 (6).
Where a railway company carries merchandise partly by land and partly by sea, all the books, tables, and documents, touching the rates of charge of the railway company, which are kept by the railway company at any port in the United Kingdom used by the vessels which carry the sea traffic of the railway company, must, besides containing all the rates charged for the sea traffic, state what proportion of any through rate is appropriated to conveyance by sea, distinguishing such proportion from that which is appropriated by land on either side of the sea: (Ib., s. 33 (5).
In consequence of several railway companies having, during 1893, increased many of their rates to the maximum rates allowed by the Provisional Orders, the provisions of that Act were amended by the Traffic Act 1894. Sub-sect. 1 of sect. 1 of the Railway and Canal Traffic Act 1894 enacts that where a railway company have, either alone or jointly with any other railway company or companies, since the 31st Dec. 1892 directly or indirectly increased, or hereafter increase directly or indirectly, any rate or charge, then, if any complaint is made that the rate or charge is unreasonable, it lies on the company to prove that the increase of the rate or charge is reasonable, and for that purpose it is not sufficient to show that the rate or charge is within any limit fixed by an Act of Parliament, or by any Provisional Order confirmed by Act of Parliament. The Railway and Canal Commissioners have jurisdiction to hear and determine any complaint with respect to any such increase, but not until a complaint has been made to and considered by the Board of Trade under sect. 31 of the Act of 1888, and, if the complaint is made to the commissioners within a year from the discovery by the complainant of the increase, they may award him such damages as they find him to have sustained: (Railway Aot 1894, s. 1 (3) and (5). *
Upon a complaint under sect. 1, sub-sect. 1, of the Act of 1894 by colliery owners that, whereas the rates and charges made by the railway company for the conveyance of coal were, prior to the 1st Jan. 1893, based and calculated upon the carriage of 21owt. to the ton, of which lowt. was an allowance for "wastage," they were now based and calculated upon the carriage of 20owt. to the ton, and that this admittedly resulted in an increase of 2 per cent. upon the rate formerly charged to the applicants, and that such increase was unreasonable, it was held by the Railway and Canal Commission Court that, the railway company having shown at least a proportional increase in the cost of working the traffic between the year 1877, when the original rates were fixed, and the year 1892, the increase of rate was reasonable; that the fact that since 1880 the railway company had supplied waggons for the mineral trade as carriers of minerals, for the use of which a separate rate was charged, did not necessitate the exclusion of this branch of their business from the general account (for purposes of comparison in order to ascertain a reasonable conveyance rate), because the trader providing his own waggons was also benefited by the increased facility and greater economy with which the traffic was handled; and that the cost of providing relief men for mineral trains, which was necessitated by the shortened hours of labour, and the fact that such trains had to stand on one side for goods and passenger trains, was an item properly (attributable to the mineral traffic, which must be worked subject to the ordinary conditions of a highway: (South Yorkshire Coal Owners' Assurance Society v. Midland Railway Company, 10 Rs. & Can. Cag. 28).
"OPENING THE COMMISSION."
THE public reading, at the opening of the September Sessions of the Central Criminal Court, of the new Commission of Oyer and Terminer and Gaol Delivery for the jurisdiction of that court, issued, according to custom, early in the present reign, draws attention to the fact that the similar commissions under which the assizes are held are now rarely, if ever, heard on circuit. The abolition of the time-honoured ceremony of opening the commission is, of course, directly due to the Order in Council of the 26th June 1884, which directs "that the commissions at all aesizes be opened by producing in court the commission or commissions under which they are to be holden before the commencement of the business of the assizes on the first day of the assizes on which a judge shall sit in court at each place without reading them at length, and by the officer of the court shortly stating that the judges or judge present at the assizes are, or is, thereby with others appointed to hold the assizes." Thus it was that the heavy hand of the law reformer was laid upon the law and custom of centuries. Theretofore one had been used to read in the assize intelligence that Mr. Justice X. or Baron Y. (there were Barons in those days) had arrived at the county
town and opened the commission. Till 1822 it was held to be essential that the commission should be opened on the commission day by one of the judges or commissioners. The preamble of the Act 3 Geo. 4, c. 10, runs thus: "Whereas it has been deemed necessary that the commissions under which the judges sit upon their circuits, or some of them, should be opened and read at the respective places appointed in pursuance thereof for holding the assizes in the presence of one at least of the quorum commissioners therein named on the very day appointed for holding such aseizes." This Act, which first gave the judges power to postpone the opening of the commission to the day following the commission day, was passed in consequence of Baron Garrow having been detained at Monmouth too late to arrive in Gloucester in time to open the commission on the prescribed day. The commission was read after miduight, and the under-sheriff was dispatched to London to consult the Lord Chancellor 88 to whether business could proceed under it. The decision was in the negative, and a fresh commission was issued later. Lord Eldon's proverbial caution was probably well founded on this occasion. Certainly it accorded with the tradition of the elders. Thus, in the entertaining Diary of Mr. Justice Rokeby, we read: Taunton, 2 April 94: I came from Exeter in the morning for fear of losing our commission, and Brother Powell stayed to try some causes that were upon his hands, but he ended them so as he came to Taunton about eight of the clock at night." Again: "We being straitened in time at Hereford, my brother Powis went towards Worcester Wednesday morning, 5 August, I having then twenty causes to try, which I dispatched about four o'clock that afternoon, but came not from Hereford till Thursday morning, 6 Aug. 96, but my brother Powis read our commission at Worcester on Wedne day night."
The Act of 1822, which is still in foroe, except so far as it is modified by the Order in Council of 1884, provides "that the judges and quorum commissioners are hereby directed and required to Lave such commissions opened and read on the very days appointed for that purpose, unless the same shall be prevented by the pressure of business elsewhere or by some unforeseen cause or accident." The effect of the Order in Čouncil would seem to be to eliminate the words "and read and to define the word "opened as meaning opened in the now prescribed manner. The result is that the Commissions of Assize and Nisi Prius, of Oyer and Terminer, and of General Gaol Delivery have become practically sealed books to the Profession and the public.
NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR. (Continued from page 398.)
The doctrines of law relating to NUISANCES, more especially those relating to obstructions of view, were considered at some length by a Divisional Court in Campbell v. Paddington Corporation (104 L. T. Rep. 394; (1911) 1 K. B. 869). The action was one for damages for the obstruction of and interference with the free use, enjoyment, and occupation of a house. As the case proceeded, however, it seems, according to the report, to have shaped itself into one in respect of a public nuisance. The ground of complaint was a structure 29ft. wide erected for members of the council to enable them to view his late Majesty's funeral procession. Mr. Justice Avory held it was an undoubted nuisance, and that it was no answer to aver that the traffic in the street was closed. The stand had been erected before the procession, and was a public nuisance from that date. Two main objections were taken by the defendants and overruled: First, that they could not be sued because they had no legal right to do what they did. The judicial answer was that in this case no corporation could be sued for any tort. Secondly, the damages recovered in the County Court were for obstruction of view, and such damages were not the natural consequence of the defendants' proceedings. The court agreed that a prospect from a house is not a right in the nature of an easement, and that no period of enjoyment will give a person a right of action in respect of a structure or trees which block the view. The court held that the enjoyment, use, and occupation of the house had been prejudiced by the defendants, and a right of action on the case could be maintained in respect of the loss, and as it was a public nuisance the plaintiff had a cause of action there also, having established special damage. It was also shown that X. had taken seats on the first and second floors which commanded a good view. When X. saw the stands being erected he demanded to be released from his contract as to the lower seats, and the plaintiff, seeing that no view could be enjoyed from these, released him. Other persons refused to take seats on this account, and the plaintiff sustained loss. It was held, therefore, that the plaintiff, by way of damages, could recover from the defendants the profits she expected to make from her seats and was debarred from making by the defendants' erection of the structure in question.
PARTNERSHIP, though an important branch of law, is not one which seems to lead to many reportable decisions, and during the past judicial year there have been very few cases calling for comment. Some interest attaches to one of the few authorities on the Limited Partnership Act 1907 (Re Hughes and Co., 104 L. T. Rep. 410; (1911) 1 Ch. 342). There was a limited and a general partner, and the capital of £500 was contributed by the limited partner, the general partner making no contribution. The business was not successful and a loss ensued, so the limited partner petitioned to wind-up under the Companies (Consolidation) Act 1908, s. 268. The general partner had drawn out large sums for his own use and had absented himself from business, and there was grave