« EelmineJätka »
would be disposed to in any sense enlarge the principle underlying that decision, or apply it to facts so essentially differing from those there considered, as the facts do in the case now before us." Mr. Justice Duff said that he did not think there was anything in the Coultas case remotely countenancing the contention that where there is a physical blow sufficient to account for nervous conditions which might also have been produced by fright, if there was fright accompanying the blow-in such a case the jury must attempt the absolutely impossible task of separating the results arising on the one hand from the physical impact from those arising from mental disturbance on the other. Mr. Justice Anglin said that, in view of the manner in which the Coultas case and the doctrine for which it is supposed to stand have been dealt with in recent English and Irish decisions, it should, he thought, be followed only in cases in which the facts are indistinguishable from those there considered by the Judicial Committee, and that that case should not, in his opinion, be held to preclude recovery where there has been actual impact to which a jury might not unreasonably ascribe the injuries complained of, or where, without actual impact, a passenger being carried by a common carrier has through the negligence of such carrier sustained a serious mental or nervous shock due to fear of immediate personal injury to himself from such negligence, the injurious physical consequences of which have been established and have been sufficiently shown to be the result of that negligence.
In Trimble v. Hill (42 L. T. Rep. 103; 5 App. Cas. 342) Sir Montague E. Smith, in delivering the judgment of the court, said that their Lordships would not have felt themselves justified in advising His Majesty to depart from the decision in Diggle v. Higgs (2 Ex. Div. 422) unless they entertain a clear opinion that the construction it has given to the proviso in question was wrong and had not settled the law, since, in their view, it is of the utmost importance that in all parts of the Empire where English law prevails the interpretation of that law by the courts should be as nearly as possible the same, and that the court in the colony might well have taken this decision as an authoritative construction of the statute; that it is the judgment of the Court of Appeal, by which all the courts in England are bound until a contrary determination has been arrived at by the House of Lords; and that in colonies where a like enactment has been passed by the Legislature the colonial courts should also govern themselves by it. doctrine has been accepted in some of the Canadian courts and faithfully followed, and in consequence earlier decisions have been overruled by subsequent ones in cases where in the meantime the Court of Appeal in England has laid down principles of equity or common law or has construed an English statute in different terms than the earlier colonial decisions. Trimble v. Hill has been judicially considered in Ontario in three recent cases. In Jacobs v. Beaver (17 O. L. R. 496) Chief Justice Moss and Osler, J.A. pointed out what they conceived to be the duty of the Divisional Court in a case where the Court of Appeal in Ontario and the Court of Appeal in England differed in their views of the law. The Chief Justice said: "In this province in all matters of controversy relative to civil rights resort is to be had to the laws of England as they stood on the 15th Oct. 1792 as the rule for the decision of the same, except so far as the said laws have been repealed by Imperial Acts having force in the province, or by Acts of the Provincial Legislature; but it is for the courts of the province, subject to appeal to properly constituted appellate tribunals, to declare these laws for the people of the province, and, still speaking for myself, I think that a decision of the highest court of a province, while it remains unreversed by a tribunal having appellate jurisdiction over it, ought not to be set aside or ignored simply for the reason that other courts not possessing appellate jurisdiction over it, and themselves subject to reversal by higher courts, have subsequently expressed views that may appear to be not in harmony with the decision, and I do not think that the suggestion of the Judicial Committee in Trimble v. Hill affords a warrant for any such practice." Osler, J.A. said on this point: "I will say that so long as a decision of this court remains not overruled by the Supreme Court [of Canada] or by the Judicial Committee, or not reconsidered by this court, the more convenient course for other provincial courts is to follow it, if uniformity of decision is of any value to litigants. In the present case the only question we can deal with is whether summary judgment ought to have been directed in the face of the defence stated, and that question is disposed of by the decision of the House of Lords in a case, not cited here or below, of Codd v. Delap (reported only in 92 L. T. Rep. 510, but referred to in the Annual Practice)." In Rex v. Lamothe (18 O. L. R. 310) the construction of a statute was involved upon a motion on behalf of the prisoner on the return to a writ of habeas corpus for his discharge. An Ontario case was cited, but the English Divisional Court had decided differently in Clarke v. The Queen (14 Q. B. Div. 92), and one question before Mr. Justice Anglin, who heard the motion, was whether he should follow the Ontario case or the English case. He said: "In deference to what the Privy Council has said in Trimble v. Hill greatly as I respect any expression of opinion by the late Chief Justice Armour, I think I should accept and act upon the view expressed by the English Divisional Court in Clarke v. The Queen as to the meaning and effect of the words 'frequent or frequenter.'' An appeal was taken to the Court of Appeal, and Garrow, J.A. said: "The case of Reg. v. Clarke (2 O. R. 523) was relied on as authority for the proposition that sect. 773 creates a substantive offence-namely, that of being a habitual frequenter of a house of ill-fame.' The
authority of that case was probably binding upon Mr. Justice Anglin, although he declined to follow it upon the other branch, that the omission of the word 'habitual' was fatal, preferring to follow, as he said, the more recent decision in England of Divisional Court in Clarke v. The Queen (14 Q. B. Div. 92); but, on looking at that case, I am unable to see anything in it to justify the conclusion that it is in any conflict with what was said in Reg. v. Clarke in the Ontario report." The Court of Appeal allowed the prisoner's appeal. In this case, therefore, the judge who first heard the matter refused to follow an Ontario decision which one of the judges of the Court of Appeal subsequently said was probably binding upon him," and, out of consideration for the doctrine laid down in Trimble v. Hill, preferred to follow an English case in a court to which the doctrine of Trimble v. Hill did not extend. Crowe v. Graham (22 0. L. R. 145) was a decision of the Divisional Court of Ontario on an appeal from a County Court dismissing an action brought in that court upon three Divisional Courts judgments. After referring to some Ontario decisions, Mr. Justice Riddell said: "If the case stood thus without anything further, we might not follow the cases in 11 and 25 U. C. R. without inquiring into the soundness of the decisions, but there are authorities which we are bound to follow, whether they recommend themselves to our judgment or not. In Trimble v. Hill the Judicial Committee say, speaking of a decision of a Court of Appeal in England, which is binding upon all the courts of England until a contrary determination is reached by the House of Lords, Their Lordships think that in colonies where a like enactment has been passed by the Legislature the colonial courts should also govern themselves by it.' It seems to me that this lays down a canon by which all colonial courts must govern themselves."
Thibodeau v. Cheff (19 O. W. R. 229) is an action of a very unusual character. The plaintiff owned a stack of straw; the defendant had a son under age who lived with his parents, and he was irresponsible and imbecile. The son set fire to the plaintiff's stack of straw, and to recover damages for the loss thus occasioned the plaintiff brought this action against the imbecile's parent. Mr. Justice Britton tried the action, and laid down the law of the case in the following terms: "It is good legal doctrine that minors are liable for their own torts, and that no presumption arises from the relationship by which the parent can be made liable, but this is not a case where presumption is invoked. The case of Edward v. Crume (13 Kansas, 343) goes no farther than to state the proposition that there is no presumption of liability by reason merely of the relationship of parent and child. The liability in this case, if any, is because of the defendant's not taking care of a dangerous human being-a dangerous animal which the defendant was harbouring. As man is an animal, I may properly use that word in reference to the son of defendant. This boy had the habit of smoking tobacco to excess and using lighted matches in places where damage would be likely to result from the use he made of matches. The defendant encouraged the son in the use of tobacco. That was contrary to law, but such an infraction of the statute would not create a liability here. The boy was under eighteen (see R. S. O. 1897, ch. 261). There was scienter on the part the defendant of the dangerous tendencies and habits of the son: there was the ability on the part of the defendant to take care of his son, and it was the defendant's duty while keeping the boy at home to take care of him, and this action is for damages for the negligence involved in the breach of that duty-damages as the proximate result of such negligence. In Homson v. Noke (60 Wisconsin, 511) it was held that a father who permits his young children to do upon his premises acts which are likely to cause injuries to passers-by is responsible for an injury so resulting, although he did not by express words of command direct his children to do such acts. This case is somewhat novel. I have not been referred to, nor have I found, any just like it, but, upon general principles, I must, upon the answers of the jury and upen the whole case, direct that judgment be entered for the plaintiff against the defendant for $570.40 damages, with costs." appeal was taken to the Divisional Court and heard before Chancellor Boyd, Mr Justice Latchford, and the trial judge, and the judgment of the trial judge was sustained. The judgment of the court was delivered by Chancellor Boyd and was concurred in by both of the other judges, and, although his opinion is too long to be transcribed here in full, enough of it is given to show upon what grounds the liability of the father is based. He said: "There seems no doubt that the son, though sixteen years of age. was stunted and undeveloped in body and mind-he busied himself with matches and smoking, and kindling fires in getting up steam as he played with a wheelbarrow, which he regarded as a traction engine. He was a congenital idiot of irresponsible impulses, whose fitting place was, where he now is, under treatment in the asylum at Orillia. The unfortunate father had this inmate of his house, and, unless vigilant supervision of the son's movements was exercised, deplorable results might be expected. The usual rule as to dangerous articles appears to be pertinent to this situation. Anyone possessed of a dangerous instrument owes a duty to the public, or to such members of the public as are reasonably likely to be injured by its misuse, to keep it with reasonable care so that it shall not be misued to the injury of others: (Chief Baron Palles in Sullivan v. Creed, 1904, 2 Ir. 329). And in Pelm Jursen (117 Ill. App. Ct. R. 535 (1905) it is held that a person who negligently authorises the use by another person of a dangerous article under such circumstances that he has reason to know that it is likely to produce injury is liable for the natural and probable consequences of his acts to one injured who is not himself at fault
and, further, in the same case, 'that, in order to render a parent liable for the tort of his infant son, it is essential that it should appear from the evidence that he might reasonably anticipated injury as a consequence of permitting such son to employ the agency which produced the injury.' The American authorities (and I find no English ones on the precise point) indicate that the father's sanction-that is, his knowledge and acquiescence-may be proved by evidence of circumstances leading reasonably and fairly to the conclusion, though there be no proof of direct and express sanction. It is stated in 29 Cyc. 1665 that the father is not liable for torts committed without his authority, express or implied; and in Beedy v. Reading (16 Me. 362) the court says that the maxim where a man has the power of prohibiting the doing of a thing, his omission to exercise that power is an evidence of his assent, is one which may be applied with great propriety to minor children residing with and under the control of their father. I take it, then, that the proof of the father's assent or consent may be express or implied, and that, when a father carelessly and negligently countenances his child in having and using the dangerous agency which may be expected to do harm, he is liable, without direct proof of his actual knowledge of the particular act or tort, so long as the circumstances of the case reasonably satisfy the court or the jury of the father's responsibility. It may safely be laid down that the father is liable for the conduct of his young child if he knows of the child's frequent wron gdoing in a particular direction, and by his attitude or his inact ion (when he is able to restrain or confine the child) he indicates his willingness that the misconduct should be repeated. This appears to be so a fortiori when the child is of imbecile or demented mind, incapable of distinguishing right from wrong, and whose manner and habit of playing or intermeddling with dangerous things easily obtained or to which there is easy access is likely to or even may probably bring about destructive results to the property of others." The appeal is reported is 19 O. W. R. 679. F. L. MILNER.
COMMENTS ON CASES.
THE interesting question that came before Mr. Justice Horridge in the recent case of West Yorkshire Darracq Agency Limited v. Coleridge (105 L. T. Rep. 215) was, as his Lordship had occasion to remark, not covered by any decision exactly in point. But if bare of authority, it certainly is not because there is anything exceptional in directors of companies acting as they did in that case. On the contrary, it is by no means an uncommon occurrence for directors to be constrained to forego their fees. Indeed, when a company gets into difficulties, that is one of the first things that is expected to be done. Jettison of that item of expenditure, in order to lighten the labouring concern, is regarded as a matter of course. In the present case the company was in liquidation, and arrears of fees were owing to the directors. At a board meeting, at which the liquidator was present, all the directors mutually agreed to withdraw and forego any claim to any unpaid balance of fees and remuneration due to them. The liquidator was a party to the agreement. Subsequently the company sued one of the directors for goods sold and delivered and work done. There. upon the defendant counter-claimed for the fees due to him as director prior to the agreement. Such a repudiation by a director of his antecedent agreement to forbear to insist upon his right to be paid his fees is probably so unusual as doubtless to account for the fact that the precise question to which it gave rise has apparently never before required determination. To 'blow hot and cold" in that fashion is something quite out of the ordinary. Nor when stated in a much more general form-as the learned judge put the question at the commencement of his judgmentdoes the proposition seem to have previously been actually decided. Is an agreement between creditors mutually to forego the debts owing to them binding upon them in such a way that it can be enforced against them by the debtor, who has merely been a party to the agreement, and who has done nothing more than that? In the view taken by Mr. Justice Horridge, although there was no consideration for the agreement moving from the company, the fact of the liquidator being a party to it rendered it binding, not only as between the directors themselves (see Good v. Cheesman, 2 B. & Ad. 328), but also as between each director and the company. It was for the same reason that his Lordship considered that what was laid down by Mr. Justice Wightman in Tweddle v. Atkinson (1 B. & S. 393, at p. 398), which was relied upon in support of the defendant's contention, did not govern the present case. For the liquidator, acting on behalf of the company, was a party to the agreement. Mr. Justice Wightman said: It is now well established that at law no stranger to the consideration can take advantage of the contract, though made for his benefit." But in that case the plaintiff was not in any sense a party to the agreement. The defendant's contention, on the other hand, was that the mere fact that the company, by its liquidator, was a party to the agreement was not sufficient, in the absence of any consideration moving from the company. Although the company thus joined in the agreement, there was, it was argued, no necessity for it to do so, and that, therefore, negatived any consideration on the part of the company. The case of Thomas v. Shillibeer 11 M. & W. 124), which was cited in support of that argument, can scarcely be treated as of any real value as an authority on the point; and it is not surprising that Mr. Justice Horridge was
not thereby influenced against the opinion that he entertained. The case that came nearest to the present was, his Lordship thought, that of Slater v. Jones (29 L. T. Rep. 56; L. Rep. 8 Ex. 186). There Chief Baron Kelly said that a creditor, who was party to an agreement by the requisite majority of the creditors to accept a composition under sect. 126 of the Bankruptcy Act 1869, could not sue for his original debt in contravention of the rights of the others (see Starkie on Evidence, vol. 2, p. 17). The statement there made is not, as Mr. Justice Horridge pointed out, in any way qualified. The learned Chief Baron did not say that, in addition to the debtor being a party to the agreement, it is necessary that some act should be done by him under the agreement. And if, as Mr. Justice Horridge considered, that is a statement of law which is applicable to the present case, his Lordship was, it seems to us, perfectly right in holding that it sufficed to dispose of the question before him.
THE recent decision of Mr. Justice Neville in Re Pope's Contract (ante, p. 293) confirms the view which has from time to time been put forward in these columns-namely, that a power to vary investments gives trustees a power of sale over real estate. The facts of that case were shortly as follows: By a settlement dated the 14th July 1899 power was given to the trustees to invest any moneys in their hands, which under the trusts thereof ought to be invested, in (among other things) the purchase of real or leasehold property in the personal use and occupation of H. K., the settlor and tenant for life; but there was no power given to the trustees to sell or vary the investments. Subsequently the trustees conveyed the property as trustees to the present vendor in fee simple. The present purchaser objected (1) that H. K. as tenant for life should have been a party to such conveyance under sect. 56 of the Settled Land Act 1882, and (2) that the trustees had no power, either express or implied, to sell the property. Thereupon a confirmatory deed was executed to which the tenant for life and trustees were parties. The purchaser was still unsatisfied, and took out a summons under the Vendor and Purchaser Act for a declaration that the vendor had not shown a good title; and it was held by Mr. Justice Neville, following Re Cooper (W. N. 1873, p. 87), that in an ordinary case power to invest implied power to vary investments, and that in the case before him a power to vary ought to be implied, and that such a power to vary investments clearly gave the trustees a power of sale. Further, that if the consent of the tenant for life was necessary, it was sufficiently proved by affidavit and by the confirmatory deed. The summons was accordingly dismissed, but without costs. In Re Cooper's Trusts the facts were shortly as follows: A testator who died in 1871 by his will gave to his mother a life annuity of £100 a year, and directed his executors to invest in good sound railway preference shares or bonds, or guaranteed stocks, or British or Indian Government securities, or freehold or leasehold securities, or mortgages, such sum of money as should bring in sufficient to pay the said annuity. There was no power of varying investments in the will. Upon a petition by the executors for the opinion and advice of the court as to whether they might from time to time vary the investments, ViceChancellor Bacon held that they had power so to do. The Trustee Act 1893, s. 1, which authorises trustees to invest in certain securities, and which is retrospective, expressly authorises them to vary investments, and such power extends to investments not made under that Act: (see Hume v. Lopes, 66 L. T. Rep. 425; (1892) A. C. 112, a decision on the earlier Trust Investment Act, 52 & 53 Vict. c. 32). It may be useful here to call attention to a very short Act which is apt to be overlooked-namely, the Trustee Act 1893 Amendment Act 1894. That Act extended to the High Court in Ireland the power of making vesting orders as to land and personal estate in His Majesty's dominions abroad conferred on the High Court in England by sect. 41 of the Trustee Act 1893. It also extended the operation of sect. 44 of that Act, and by sect. 4 it enacted that a trustee should not be liable for breach of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorised by the trust instrument or by law. That section seems to confirm Eland v. Medland (60 L. T. Rep. 781; 41 Ch. Div. 476), in which it was decided that where mortgaged property has fallen in value so that the mortgage debt has come to exceed two-thirds of the actual value of the property, it is not the absolute duty of the trustees at once to call in the mortgage, but they have a discretion which they must exercise as practical men, with due regard to all the circumstances of the case.
for the time being of the hereditaments delineated on the plan hereto annexed and thereon coloured pink continuously from the hour of 6 a.m. to the hour of 6 p.m. on each day with a supply of water from Pool belonging to the owner by means of the existing water ram belonging to the owner such supply to be as nearly equal to that at present enjoyed by the said hereditaments coloured pink as shall be practicable except in times of drought or shortage of water or frost or in other circumstances over which the owner has no control.
2. The consumer shall pay to the owner as the consideration for such supply as aforesaid the annual sum of £ continuance of this agreement by equal half-yearly instalments the during the first such payment to become due and be paid in advance on the day of 191 and all subsequent payments to be made in advance on the day of and the day of in every year. 3. The said ram and all such pipes valves and other fittings as shall be necessary and proper for the conveyance of the water hereby agreed to be supplied to the consumer through the land of the owner shall at all times during the continuance of this agreement be maintained and kept in good and proper repair free of expense to the consumer. PROVIDED ALWAYS that the agreement last aforesaid shall not extend to any pipes or fittings in or on the said hereditaments coloured pink which last-mentioned pipes and fittings are the property of the consumer and shall at all times during the continuance of this agreement be maintained kept in good repair and renewed when necessary by the consumer. 4. Without prejudice to the liability of the owner under clause 1 hereof the consumer shall at all times make use so far as is reasonably practicable of the natural supplies of water veniently available on the said hereditaments coloured pink. 5. In case any payment of the said annual sum of £ shall not be made within twenty-one days after the date herein provided for such payment the owner shall be entitled to discontinue the said supply of water and the consumer shall not be entitled to a continuance of such supply until the sum in arrear shall have been paid to the owner by the consumer.
6. The consumer shall be at liberty to determine this agreement by giving to the owner three calendar months' previous notice in writing to expire at any time.
7. If any dispute difference or question shall at any time arise between the owner and the consumer in connection with the said water supply or otherwise in relation to or arising out of this agreement the same shall be referred to two arbitrators one to be appointed by each party to the difference in accordance with and subject to the provisions of the Arbitration Act 1889 or any amendment or re-enactment thereof.
8. All obligations rights and powers hereinbefore imposed on or given to the owner and the consumer respectively shall also be binding on and belong to and may be exercised by the persons deriving title under them respectively and in the case of the owner upon to and by his successors in title. IN WITNESS &C.
Mortgage of Freeholds by the Trustee and Executor of a Mortgagor in pursuance of an Agreement to execute a Legal Mortgage.
This INDENTURE made the
A. B. of
C. D. of
191 BETWEEN in the county of of the one part and in the county of of the other part. WHEREAS by an indenture dated the and made between X. Y. of day of in the county of the one part and the said C. D. of the other part in consideration of the sum of £e already advanced by the said C. D. to the said X. Y. the said X. Y. thereby agreed to pay to the said C. D. her executors administrators or assigns on the then next the sum of £e with interest thereon at the day of rate of £ per cent. per annum from the date of the indenture now in recital and also if default should be made in payment of the same principal sum at the time aforesaid to pay to the said C. D. her executors administrators or assigns so long as the same or any part thereof should remain unpaid interest at the rate aforesaid on the sum so remaining unpaid by equal half-yearly payments and also that he the said X. Y. his heirs or assigns and all necessary parties (if any) would at any time while the said principal sum of £e or any part thereof should remain unpaid at his or their own expense if and when so required to do by the said C. D. her executors administrators or assigns make and execute a valid mortgage in fee simple free from incumbrances of the hereditaments hereinafter described and hereby assured to the said C. D. her executors administrators or assigns for securing the payment of the principal sum so then remaining unpaid with interest for the same at the rate aforesaid such mortgage to contain such usual mortgage provisions suitable to the nature of the premises as she or they should require and that until the said mortgage should be made and executed the said premises thereby agreed to be mortgaged should be and remain a security to the said C. D. her executors administrators and assigns for and be charged with the payment to her or them of the said sum of £e and interest as aforesaid. AND WHEREAS the said X. Y. duly made his will dated the day of
189 and thereby gave devised and bequeathed all his real and personal estate and effects unto his wife the said 4. B. and his friend Z. upon the trusts and with and subject to the powers and
provisions therein declared and contained concerning the same respectively and the said testator appointed his said wife 4. B. and the said Z. executors and trustees of his said will. AND WHEREAS the said testator died on the without having revoked or altered his said will and the same was day of 1894 duly proved in the Principal Registry of the Probate Division of the High Court of Justice on the day of 1894 by the said A. B. alone the said Z. having renounced probate of the said will. AND WHEREAS by a deed poll under the hand and seal of the said Z. dated the day of 1894 the said Z. disclaimed the office of trustee and executor of the said will and all interest in the real and personal estate devised and bequeathed by the said will. AND WHEREAS the said principal sum of £e together with interest thereon from the day of (making the total sum of £f) remains owing to the said C. D. on the security of the hereinbefore recited indenture. AND WHEREAS the said C. D. in pursuance of the agreement in that behalf contained in the hereinbefore recited indenture has required the said A. B. to execute these presents and the said A. B. has agreed to execute the same accordingly. Now THIS INDENTURE WITNESSETH that in pursuance of the said recited agreement and in consideration of the premises the said 4. B. as trustee and executor of the said will of the said X. Y. doth hereby convey unto the said C. D. and her heirs ALL &c. TO HOLD the same premises unto and to the use of the said C. D. her heirs and assigns subject to the proviso for redemption herein after contained. PROVIDED ALWAYS and it is hereby agreed and declared that if the said A. B. as such trustee or executor as aforesaid or any person interested in the said hereditaments under the said will shall on or before the day of pay to the said C. D. her executors administrators and assigns the said sum of £e together with interest thereon at the rate aforesaid from the said day of the said C. D. her heirs executors administrators and assigns shall at any time thereafter on the request and at the cost of the person making such payment reconvey the said premises hereby assured to the use of the said A. B. or other the trustee or trustees for the time being of the said will her his or their heirs and assigns upon the trusts of the said will. AND IT IS HEREBY AGREED and declared that the power of sale conferred on mortgagees by the Conveyancing and Law of Property Act 1881 shall apply to this security and so that the same shall be immediately exercisable without notice by reason of the said interest being so in arrear as aforesaid. PROVIDED ALWAYS and it is hereby expressly agreed and declared that these presents shall not prejudice the security effected by the said indenture of the day of 189 or the rights or remedies of the said C. D. thereunder but shall be auxiliary thereto. IN WITNESS &C.
The opening of the Law Courts was preceded by the usual religious services at Westminster Abbey and Westminster Cathedral. The Abbey service was attended in State by the Lord Chancellor, the judges of the High Court, King's Counsel (headed by the AttorneyGeneral and the Solicitor-General), officers of the Supreme Court, and the Junior Bar. At Westminster Cathedral Mass was celebrated, Archbishop Bourne officiating.
In Appeal Court II. appeals under the Workmen's Compensation Acts will be continued until further notice.
On Wednesday next the following retained actions with witnesses will be in Mr. Justice Joyce's paper: Lever Brothers Limited v. Masbro Equitable Pioneers Society Limited and Benjamin Brooks and Co. Limited v. Same.
Mr. Justice Lush will take the case of McLelland v. Lord Mayor of Manchester to-day (Saturday).
All applications in the Special Jury List must be made in King's Bench Court V.
All applications in the Common Jury List must be made in King's Bench Court IV.
All applications in the Non-Jury List must be made in King's Bench Court VI.
The October Sittings at the Mayor's Court will commence on Thursday next, the 19th inst., at 10.30.
The annual dinner of the Central Criminal Court Bar Mess will take place on Tuesday, the 31st inst., and not on the 21st inst. as previously announced."
Alderman Samuel Crossley, J.P., of Richmond-terrace, Blackburn, solicitor, has agreed to accept the unanimous invitation of the members of the Blackburn Town Council to become the Mayor of Blackburn for the coming municipal year.
A Blue Book issued by the Home Office states that £2,700.325 was paid in compensation to workmen last year under the Compensation Act of 1906 by employers in seven great industries in which over 7,000,000 persons are engaged. We shall deal with this publication next week.
It is stated that proceedings are to be taken to test the validity of the deportation of Mr. Galbraith Cole from the East African Protectorate, and that Messrs. Lumley and Lumley have been retained as solicitors, and Sir Edward Carson, K.C., and Mr. W. Bowstead as counsel.
Oct. 14, 1911.]
Dr. Aeneas James George Mackay, K. C., LL.D., author of Court of Session Practice and other works, formerly Professor of Constitutional Law and History in the University of Edinburgh, who died on the 10th June last, aged seventy-two years, left personal estate in the United Kingdom valued at £53,458.
As difficulty was experienced on several occasions last month in finding sufficient magistrates to constitute a bench, the Wimbledon Town Council has invited the county borough of Croydon and the boroughs of Kingston and Richmond to join Wimbledon in a petition to the Home Secretary for the appointment of a stipendiary magistrate for the four towns.
The Medico-Legal Society will hold the inaugural meeting of the winter session on Tuesday, at 11, Chandos-street, Cavendishsquare, W., at 8.30 p.m., when Mr. Roland Burrows, LL.D. "Note on a Recent (Inner Temple), will read a paper entitled Murder Trial.' Mr. Walter Asten will also read a paper upon "Traumatic Neurasthenia." Members of the Legal Profession are invited to be present and take part in the discussion.
Judge Ruegg, K.C., spent some time at Longton on Tuesday last working on a dirt-tip, on a local colliery, in order to discover whether a man now receiving compensation could reasonably be The judge expected to do the work offered him by his employers. returned to the County Court looking very tired, and promptly dismissed the colliery company's application to reduce the amount of compensation, deciding that the man could not do the work offered him.
as usual, makes The commencement of Michaelmas Term, noticeable one or two gaps caused by the removal by death during familiar to the busy the vacation of men whose faces were practitioner. Among those to whom the 1911 "Long has been the last, none are better known on the Common Law side than Mr. Francis J. Peirson, the managing clerk to Messrs. Field, Roscoe, and Co. The deceased was with that firm for half a century, and his death and burial took place, after a severe operation, at the start of the vacation.
Mr. Justice A. T. Lawrence will take the chair on Thursday, the 14th Dec., at 8 o'clock p.m., at a Bohemian concert at the Portman Rooms, Baker-street, W., on behalf of the Royal Courts of Justice Staff Sick and Provident Fund. Mr. Lauriston Batten, K.C., will occupy the vice-chair. A large number of talented professional and amateur artists have volunteered their services. Tickets may be had of Mr. Albert Allaway (secretary), or Mr. George Lodge (assistant secretary), Room 424, Royal Courts of Justice.
Professor Sir John Macdonell, C.B., M.A., LL.D. (Quain Procourse of public fessor of Comparative Law), will deliver a lectures in connection with London University on Comparative Legal Procedure as Illustrated by Certain Historical Trials (including those of Socrates, Jeanne d'Arc, &c.)." on Wednesdays, at 5.30 p.m., at the London School of Economics, Clare Market. The The lectures are first lecture will be given on Wednesday next. open to the public without fee; they are intended for members of the Legal Profession, students of political economy, political science, and sociology, and for journalists.
Mr. A. E. Gill, the junior magistrate at Woolwich Police-court -whose late arrival at the court on Tuesday was referred to by a correspondent in the Times of Wednesday-took his seat at In reply to 3.45 Wednesday and concluded the business at 5.35. inquiries by a Press representative Mr. Gill expressed the opinion that there is too much work at Greenwich and Woolwich Courts for one magistrate to deal with in one day, as is necessary at present. His view was that there should be a magistrate for each court, or that the business of both courts should be dealt with at.
The French courts and tribunals have opened. The proceedIn the first place, the retiring ings were practically informal. batonnier, M. Busson-Billault, handed over the emblem of office to his successor, M. Fernand Labori, but the proceedings were private. Since the ancient messe rouge has been abolished the inaugural proceedings have been shorn of much of the picturesque. There was the eulogy of the lawyers who had passed away during the year and the statement as to the business of the courts. M. Labori took the oath, and the Order of Advocates voted 2000 francs for the families of the victims of the Liberté disaster, and a similar sum towards building a new warship.
In the City of London Court on Tuesday an interesting jurisdiction point arose. Mr. Arthur Thesiger, on benalf of James Bannister, of Grays, and another, applied for leave to issue and serve a summons out of the jurisdiction against Stocks, Turnbull, and Co. Limited, 475, High-street, Kirkcaldy, under the County Courts Act 1888, s. 74. Defendants were the owners of the steamship Abbotshall, and the plaintiffs were employed by the owners of the sailing barge Cullen, which was sunk by the defendants' vessel in a collision in the Thames. Actions were started on behalf of the owners of the barge and the plaintiffs, the master and mate, for the loss of their effects. The owners' action was settled by their being paid 90 per cent. of their damage, and plaintiffs now were making a similar demand because of an agreement which the defendants had entered into. A representative of Messrs. Crump and Sores, solicitors for the defendants, resisted the application, and said that the action should be brought in Kirkcaldy. Judge Lumley Smith granted the application, and said that the rule gave plaintiffs authority to sue in London instead of having to go to Scotland.
A letter was read at the meeting of the Court of Common Council on the 5th inst. from Dr. F. J. Waldo, the coroner for the City, in reference to the fire which occurred in Middle Temple-lane on the 10th June. The authorities of the Middle Temple had repudiated his jurisdiction to hold an inquest under the City of London Fire Inquests Act 1888. Mr. Brinsley-Harper suggested that in any inquiry which might be made into the question of the City jurisdiction attention might simultaneously be paid to similar contentions by kindred bodies, such as Staple-inn, where, it was understood, the rights of the officials of the City sheriffs were contested. The letter of the coroner was referred to the County Purposes Committee to consider and report.
According to an article in the edition of the Jijishimpi to celebrate its ten thousandth issue, M. Hanai, a member of the Legislature, one of the counsel for the defence of Dr. Kotou, who, with his wife, was hanged about a year ago in connection with the Socialist conspiracy to overturn the Government, Japan occupies the unenviable position of being the first of the nations of the world in regard to crime. The daily prison population is given at 69,073. The annual cost of the administration of criminal law in Japan is stated to be 13,475,751 yen, or, as a Paris contemporary puts it, 35,000,000 francs, or £1,600,000. M. Hanai considers much of the crime is due to the severity of the code and the harshness of the judges.
Mr. A. J. Lawrie took his seat as Deputy-Chairman of the County of London Sessions, in succession to Mr. Loveland Loveland, K.C., on Tuesday last. In addressing the grand jury Mr. Wallace, K.C., the chairman, expressed the regret which all concerned in the administration of justice in the county felt at the loss sustained by the retirement of Mr. Loveland Loveland, who for over twenty years had discharged with great ability and impartiality the duties of deputy-chairman and assistant judge at the sessions. Mr. Wallace referred in his address to the grand jury to the recently-issued report of the Prison Commissioners, and said it was a matter of great gratification that the new methods of dealing with first offenders and trying to prevent them from sinking into the ranks of habitual criminals were having such marked success, and that crime was steadily decreasing.
At the Worcestershire Quarter Sessions on the 9th inst. Mr. J. W. Willis Bund (chairman) called attention to the circular issued by the Home Office with reference to the formation of police reserves. He said he was of opinion that the proposal was wholly illegal. The circular stated that the Home Secretary had given the constabulary inspectors instructions to take into account the police reserve when reporting upon the efficiency of the force for the purposes of grants. The proposal might be wise, politic, and legal -about that there were differences of opinion-but he thought things had to a pretty pass when a Secretary of State threatened that unless they carried out his wishes he would practically fine the county. He proposed a resolution asking the Home Office if the circular meant that a register of a police reserve was to be kept, or whether men were to be enrolled. If the latter course was intended, the resolution stated that the justices would like to know under what statute that action was to be taken. The resolution was carried.
Commencing on Monday next, the 16th inst., the machinery of the Tribunal de la Seine will be augmented by two new courts, which have been called into existence conformably to a desire frequently expressed by the Budget Commission and the Minister of Justice. There will be no increase in the cost of the administration of justice, the judges will be drawn from the suppléants. One court, under the presidency of M. Lemercier, will assist the existing section in the affaires d'accidents du travail, and the other, presided over alternately by MM. Scribe and Bastide, will adjudicate upon affaires de divorce et d'accidents de droit commun. It is hoped with the assistance of these two new The Palais, like our The courts the judges will overtake the arrears.
courts in the Strand, has not a super-abundance of courts.
The London County Council, as owners of the steamer Belvedere, claimed £300, in the City of London Court, on the 4th inst., against Mr. William Watkins, 75, Mark-lane, E.C., the owner of the steam tug Simla, for damaging her on the 10th Sept. last year off Purfleet. Mr. A. E. Nelson appeared for the plaintiffs, and Mr. Stephens for the defendant. The Belvedere, a sludge steamer, was at anchor, there being a dense fog at the time, when it was said that the Simla, having the barque Natvig in tow, ran into her, causing the Natvig to do considerable damage. The tug got out of the way, and let the Natvig get all the damage. The first duty of a Thames steam tug master in a collision was, said Mr. Nelson, to get out of the way and let the tow get the effect of the blow, and that was what happened. The defence was that the plaintiffs' men were not ringing the bell or keeping a If the bell was rung, proper look-out, as they should have done.
it was not heard. Judge Rentoul observed that there was doubt a bell would not be heard at a distance in a fog as well as on a clear day. Mr. Nelson said there were acoustic fogs and non-acoustic fogs. Some fogs would convey sound better than clear air. In America, bells were used on engines, because they could be heard further than whistles. Mr. Stephens: That is why they have such disastrous accidents. Mr. Nelson: They do not have worse accidents than we do. Judge Rentoul, K.C., who was assisted by nautical assessors, found for the plaintiffs, with costs.
In the City of London Court, last week, a case was mentioned in which Messrs. F. Harris and Co., Par, Cornwall, the owners of the schooner Devonia, sued the owners of the sailing ship Amy for £150 damage done to her by the negligent navigation of the Amy while in the harbour of Par loading china clay. The Amy is engaged in the coasting trade from Par to Newcastle. Defendants alleged that the damage was caused by the defective condition of the harbour at Par, the owner of which was Mr. C. E. Treffry, of Fowey, Cornwall, who was made a co-defendant. The Devonia was said to have been properly moored alongside the quay at Par in March last, when the Amy came alongside the Devonia and damaged her, giving her a foul berth. Mr. Hawke, counsel for the co-defendant, now asked that the case should be transferred to the Truro County Court for trial. There was, he said, really no jurisdiction, as the court had only become seised of the action by consent of the plaintiffs and the, defendants, and that could not govern the co-defendant. The preponderance of convenience was in favour of the case being heard at Truro. The harbour at Par must be carefully surveyed, and it should be done by surveyors at Par, Fowey, or Plymouth, who were in the habit of dealing with such maritime matters. If the case was not tried at Truro the expense would be very great. Mr. D. Stephens, counsel for the plaintiffs, said that, as the co-defendant had taken a step in the action by entering an appearance and asking for a statement of claim, the jurisdiction point was not open to him. It would be much more convenient for everyone to have the case heard in London. Mr. Humphries (Messrs. J. A. and H. E. Farnfield), for the defendants, also opposed any transfer. Judge Rentoul, K.C., said he was satisfied that the case ought to be tried in London, and he ordered accordingly.
The articles in the lay Press in which surmises are embodied in reference to the attitude of Great Britain in relation to the war between Italy and Turkey and the various complications likely to arise therefrom, are in themselves object lessons of the fact, to which attention has so frequently been directed in these columns, that the attitude of Great Britain in foreign affairs is governed, not by Parliament, but by the Cabinet. In the direction of the foreign policy of this country Parliament has no effective control. The prerogatives of declaring war and making peace and of entering into treaties, like other great prerogatives of the Crown, have in their exercise been transferred to the Cabinet-a body no doubt responsible to the House of Commons, but not required, in accordance with the practice of the Constitution, to take Parliament into its confidence in reference to the proposed exercise of these powers. These prerogatives must no doubt be exercised on the advice and upon the responsibility of Ministers who are of course accountable to Parliament, and the necessity of obtaining adequate supplies for the prosecution of a contest with any foreign Power and the control possessed by Parliament over the army and the navy by the Annual Act, coupled with the existence of Ministerial responsibility, constitute some checks, although not sufficiently powerful, against the improper use of these prerogatives. Mr. Bryce, in his great work The American Commonwealth, when explaining the control of foreign policy by the Senate of the United States, thus writes: "The day may come when in England the question of limiting the at present all but unlimited discretion of the executive in foreign affairs will have to be dealt with, and the example of the American Senate will then deserve and receive careful study." On the 19th March 1886 a resolution desiring all treaties to be laid before Parliament for its approval before being finally concluded was all but carried in the House of Commons. It was defeated by four votes only.
The October Sessions for the jurisdiction of the Central Criminal Court were opened on Tuesday. The calendar contains the names of 124 persons under committal for trial. There are nine charges of murder. The Recorder, in charging the grand jury, said he regretted that the calendar was not only a very long one, but it comprised a large number of very serious offences, including three of great length and complexity. He was afraid the result would be that, although the next sessions would not be held for a month. they would not when they began have completed the business of the present sessions. They would be fortunate if, with the cases committed to the November and December Sessions, they finished the business of the court before the Christmas holidays. It had been suggested in some quarters that in addition to all the cases which were committed to that the first Court of Assize in the country, they should also take upon themselves the burden of disposing of all the business generally done at the London Sessions. Such a proposal would, in his opinion, only lead to the most disastrous results, cause great confusion in the dispatch of the business of the court, and necessitate a large number of persons remaining in custody awaiting trial a very long time. After the grand jury had concluded their duties on Wednesday, the foreman, addressing the Recorder, read the following presentment :-" In view of your remarks in the course of your charge to us as to the existing congestion of business before this court and the threatened further congestion, we wish to put it on record that in our opinion a considerable proportion of the cases which have come before us in the course of our present labours are such as should never have occupied the time of what you describe as the first assize in the kingdom, indeed in the world,' to say nothing of that of the grand jury." After indicating the types of cases which the grand jury had in mind, including Post Office, taxicab, and counterfeit coin prosecutions, the presentment proceeded :-"In our opinion
these and other similar ones are all cases which should either have been disposed of by the magistrates or committed to the court which corresponds to Quarter Sessions in the provinces. We are further of the opinion that, in view of the steady growth of the area for which this court is the principal assize, if the necessary machinery is not already in existence for giving effect to the above recommendation it is highly desirable that legislation should be initiated without delay for the purpose of creating the same." The Recorder explained that all cases which ordinarily would be tried at Quarter Sessions were sent for trial to that court if they were committed within the City proper, because the Corporation of London tried all their cases there instead of at Quarter Sessions held in other parts of the country. That was why many of those small cases which the grand jury spoke of were brought before the grand jury at every sessions. That had always been done.
Parry on Judgments in Vacation. Smith, Elder, and Co., 15, Waterloo-place. Price 7s. 6d. net. Macmillan and Co.
Green on Law for the American Farmer. Limited, St. Martin's-street, W.C. Price 6s. 6d. net. Le Régime International de la Propriété Industrielle. Par A. Pillet and M. G. Chabaud. Allier Frères, 26, Cours de SaintAndré, Grenoble.
Oakley's Divorce Practice. Seventh Edition. Jordan and Sons Limited, 116 and 117, Chancery-lane, W.C. Price 21s. net.
Henderson's Digest of Cases published in the Law Journal Reports and the Law Reports 1906-1910. Stevens and Sons Limited, 119 and 120, Chancery-lane; Sweet and Maxwell Limited, 3, Chancery-lane. Price £1 10s.
Lombroso on Crime. Translated by H. P. Horton, M.A. William Heinemann, 21, Bedford-street, W.C. Price 16s. net.
CRIMINAL LAW AND THE JURISDICTION OF MAGISTRATES.
BOROUGH QUARTER SESSIONS.
Abingdon, Thursday, Oct. 19
Bristol, Wednesday, Oct. 25, at 10.30
Hythe, Saturday, Oct. 28
Tiverton, Wednesday, Oct. 18
THE recent case in which a prisoner standing charged on a coroner's inquisition with murder, against whom a grand jury found a true bill, not for murder, but for manslaughter, but who was tried for murder on the inquisition and not for manslaughter on the indictment, calls attention to the fact that a person may be prosecuted for murder or manslaughter without the intervention of a grand jury, for the finding of a coroner's jury is itself equivalent to the finding of a grand jury. The defendant is arraigned on the inquisition as on an indictment, and the subsequent proceedings are the same. The practice is when a prisoner stands charged with murder or manslaughter to take him before the magistrate and prefer also an indictment against him, and he is tried on the inquisition and the indictment at the same time. The trial of a prisoner on an inquisition for a greater crime than the crine for which a grand jury had found a true bill against him removes the very generally received impression that the finding of the coroner's jury and inquisition are practically disregarded and useless as far as criminal proceedings are concerned, and will have a tendency to increase the desire for a critical examination of the utility of a grand jury in criminal procedure, having regard to the development of criminal law and administration. A few years ago in Ireland a grand jury found a true bill for common assault in a case of wounding with intent to do grievous