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authorities who seem to give them a preference for legal appointments connected with the navy, we are not at all sorry that such flagrant elementary blunders were made in the course of the Megera court martial. It seems almost a contradiction in terms to say Captain So-and-So, barrister-at-law: the Rev. So-and-So, plumber and glazier, would be scarcely less ridiculous. We do not say that young officers may not abandon the service and become excellent lawyers, but the man of maturer years should think twice before making the change, and Government should, as Mr. GLADSTONE Said with reference to the reform of the House of Lords, think not only twice but thrice before they employ them in the public service.
WE are informed that the Hon. G. DENMAN, Q.C., the arbitrator appointed to determine the dispute between Mr. MACLEOD and the Crown in respect of the preparation of Specimen Digests of the Law, has awarded Mr. MACLEOD the sum of 6251., making the total remuneration received by Mr. MACLEOD equivalent to 750l., per annum for two years' work. The arbitrator has assigned no reasons for his award, and the Government has refused to allow him to do so. Mr. MACLEOD, however, conceiving that the payment made to him, being as a matter of fact at the rate of two guineas a day for work extending over ten hours a day, is wholly inadequate, and as he is precluded from having the award reviewed by a court of law, intends to present a petition to Parliament in order that there may be a public inquiry. Mr. DENMAN would appear to have disregarded the damage resulting to the gentlemen employed from the abrupt termination of the engagement; but apart from that, it seems truly monstrous that the highest legal ability short of the Bench should be expected to undertake a laborious work of national importance for less than a third of the pay of a Parliamentary draughtsman.
THE Benchers of the Inner Temple have been first in the field with the new regulations respecting compulsory examinations. A notice has been posted, dated Nov. 17, intimating that the four Inns have agreed to call no students to the Bar unless they have passed a public examination. It is also intimated that, with a view to this examination, a course of lectures will commence early in January. There is some doubt in the minds of present students whether this notice is retrospective. We apprehend that it is not. We are unable to state whether the lectures in the different Inns will go on contemporaneously with the lectures appointed by the Council of Legal Education; but we should imagine that the latter will be abandoned, and each Inn be left to educate its own members. The following is the notice referred to:
The four Inns of Court having determined that there shall be a compul sory examination of students for the Bar before they are called to the Bar, or allowed to practise under the Bar, the Masters of the Bench desire to inform the students of this Inn, that in order to assist them in preparing for such examination, they have instituted a course of instruction, of which every student of this Inn may, if he pleases, avail himself. The course will commence on the 11th Jan. next. There will be three Legal Terms, and the payment will be one guinea a term for each student attending a class.
The Benchers of the Inner Temple wish to appoint four gentlemen to instruct the students of the Inn in-Jurisprudence and Civil and International Law, Constitutional Law and Legal History, Equity and the Law of Real Property, Common Law. The terms and duties of the appointments may be obtained at the Treasurer's office, Inner Temple. Candidates are requested to send in their applications on or before the 7th Dec. next,
Mr. REDFIELD, the American lawyer, in a paper on Law Reform in the United States, makes some important suggestions founded on his own experience. He says: "My own experience of the practical working of attempts at codification has been restricted to these revised statutes. That process was resorted to in the State of Vermont, while I was connected with the Supreme Court of that State. The result did not impress me favourably in regard to any actual improvement in the statutes, by reducing them to a formal code, either in regard to certainty or completeness. The Commissioners for presenting the draught of the revision consulted the statutes of other States, and incorporated many new provisions into their report, and altered some of the existing ones, and changed the phraseology in many instances, either for greater certainty or symmetry, but in almost every instance produced many times more uncertainty than they cured, and in some instances resorted to such refinements of language, as might seem more suitable to other writings than to the statutes of a State. The highest judicial tribunal of the State was, more or less, occupied for many years in removing the uncertainties created by these 'improvements in language.' I am thoroughly convinced that after a statute has received repeated judicial constructions, if it is intended to be substantially preserved, it is not wise to change its phraseology, however much it may seem to increase its clearness or beauty. I think, therefore, that while revisions or concentrations of the statutes of a State after they become considerably numerous, is of the last importance, for the convenience of those who desire to consult them; it should, nevertheless, so far as practicable, always be done with the strictest adherence to existing phraseology."
RESOLUTIONS IN LIQUIDATION. CONSIDERING the very large extent to which the liquidation clauses of the Bankruptcy Act 1869 are being made available, it is clear that the procedure at the meetings of creditors should be carefully regulated according to the spirit and letter of the Act. A most important part of this procedure has reference to the resolutions of creditors. We will state shortly what directions are given by the Act. The resolution referred to in sect. 125 is a special resolutoin, which is to be passed by the general meeting of a debtor's creditors summoned by him, and with regard to this it is said, by clause 14, that in calculating a majority on a special resolution for the purposes of this section, creditors whose debts amount to sums not exceeding 101. shall be reckoned in the majority in value, but not in the majority in number. By clause 4 the duty is imposed on the registrar to inquire whether the special resolution has been passed in the manner prescribed by the section, and on being satisfied, he is to register it. The rule (275) applicable to the section of the Act, says that the special resolution shall determine whether the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy, or whether any, and what, composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, or it may reject either of such modes of arrangement. It concludes thus :-"Only such resolutions as are reduced into writing and are signed by or on behalf of the statutory majority of the creditors assembled at a meeting, shall be taken cognisance of by the court, but the signatures of such creditors may be subscribed subsequently to the making, but prior to the filing or registration of the resolution." Upon this rule doubts arose as to the validity of a resolution not at the time of being passed assented to by a particular creditor, though subse-quently signed by him, and the point has been decided.
The case to which we refer is well known, Ee parte Pooley, re Russell (23 L. T. Rep. N. S. 275; L. Rep. 5 Ch. App. 722). There, a large creditor attended by proxy (rule 85), and opposed resolutions for a liquidation by arrangement. Without him the requisite majority did not assent to the resolutions. He subsequently signed them, and the Chief Judge in Bankruptcy ordered them to be registered. On appeal the direction of the Chief Judge was sustained. Lord Justice James remarked that "the Act does not say that the resolutions must be passed by a show of hands, nor indeed that the votes must be given at the meeting at all,” but the creditors vote when they affix their signatures to the resolutions. It was held incidentally that because resolutions contained certain conditions upon which the future property of the debtor was to be realised, this fact did not make them extraordinary resolutions, and that the matter was proper to be contained in a special resolution.
We last week reported an analogous case, containing somewhat more elaborate directions as to the framing, passing, and registra tion of resolutions-Ex parte Orde, re Horsley (25 L. T. Rep. N. S. 40). This is rather more important than E parte Pooley, because the resolutious were refused registration by a County Court Judge, ordered to be registered by the Chief Judge, and ultimately refused registration by the Lords Justices. The rock the creditors split upon in Ex parte Orde was a resolution for adjournment. That resolution was passed ostensibly by a majority, but as a matter of fact this was not so, the original meeting being informally adjourned; the County Court Judge and the Lords Justices held that the resolutions passed at the adjourned meeting wese invalid. It was contended on the part of the trustee appointed under the liquidation that it was not necessary that a resolution merely to adjourn a meeting should be passed with all the formalities required for the resolutions referred to in the Act and the Rules. And that was the entire question. Rule 293 says that "where any resolution is required to be passed, or any act to be done by the creditors present or represented at the meeting, the majority required for the purpose shall, in the absence of any enactment to the contrary, be a majority in value of the creditors present or represented thereat.” And the Lords Justices construed that to mean that nothing but affirmative evidence that the majority is a proper majority, according to the statute, can give the resolution validity. Then follows the question what must be the evidence, and Sir IV. Russell's case comes in to show that the only admissible evidence is the signatures of the creditors present or represented at the meeting. "The Registrar," said Lord Justice James, "is to see that the persons assenting thereto do constitute a majority in value of the creditors present or represented thereat, or a majority of two-thirds, as the case may be, and there is no duty whatever cast upon the registrar of ascertaining whether any other persons present voted against or expressed themselves neuter, or as not desiring to vote at all." The papers alone have to be looked to, and no regard to be paid to what took place in the room
An objection was started with reference to clauses 7 and 8 of sect. 16 of the Act, which speaks of a "majority of the persons present and voting on such resolution," which it was urged were inconsistent with the rules, which say that the resolution must be signed in writing by persons present at the meeting in person or by proxy. "It seems to me," said the Lord Justice, "there is no real inconsistency between the statute and the rules. There is no definition in the statute of the meaning of the words 'voting on
such resolution,' and it is in my judgment quite within the proper functions of the rules and regulations made under the Act of Parliament to define what shall be the meaning of these words." Consequently, resolutions to be valid must be passed by a majority of those present or represented at a meeting, and for the purpose of estimating the majority those who withdraw their proofs, though remaining in the room, cannot be taken into calculation, though they do not vote against the resolution. "It is not necessary that there should be a vote of non-assenting creditors to show that they did not vote for the resolution" (per James, L. J.) And the learned Judge says to creditors: "If you do not want to vote, if you do not want to be considered as voting on the resolution, withdraw your proof from the chairman and retire, not retire personally, but retire from voting on the resolution. Withdraw your proof, and allow the thing to be decided by the others.” And the matter is tersely put by Lord Justice Mellish that the voting on a resolution for adjournment, as in all other resolutions, must be evidenced by a resolution in writing, which the court can look at, and must be signed by the proper statutory majority of the creditors.
THE LAW OF LIBEL IN THE QUEEN'S BENCH. RESPECT for the functions of juries seems to have led two of the Judges forming a majority of the Court of Queen's Bench to assent to what is called by a third Judge a somewhat dangerous extension of the law of libel. The case of Jenner and another v. A'Beckett will be found in our reports to-day, and by a reference to it it will be seen that Mr. Justice Mellor and Mr. Justice Hannen consider that to abuse the title given to a marketable article by calling it silly, slangy, and vulgar, is not so clearly an innocent exercise of the freedom of the press that the printer of the abuse should be exempt from the operation of the minds of a jury in the consideration whether such abuse was a reflection upon the plaintiffs as to the way in which they conduct their business.
But before the decision of the majority of the court is condemned, and there is a strong feeling against it, the fact that it was given on demurrer should be borne in mind. Libel or no libel is peculiarly a question for the jury, and until a jury has given an opinion it is of doubtful expediency for the court in banco to interfere and say that the question shall not go before a jury at all. In Campbell v. Spottiswoode (8 L. T. Rep. N. S. 201), which is cited as containing doctrines applicable to Jenner v. A'Beckett, the jury had already found their verdict in favour of the plaintiff, and it was endeavoured to obtain a rule to enter the verdict for the defendant on the ground that the jury found that the writer believed his statements to be true. The rule was refused. In that case there was not a mere charge against the plaintiff that his conduct was foolish and absurd; base and sordid motives were assigned. It can only be inferred from the judgments in that case that apart from such element in the article, the court would have held that there was no libel. Chief Justice Cockburn said, "You have a perfect right to canvass a man's public conduct and to say that it was foolish and absurd, and that the effect of the subscription which the plaintiff was asking the public to contribute was to put money into his own pocket." Mr. Justice Blackburn is emphatic that the question what the language actually imputes is for the jury.
But on the general question-and it is becoming an important one-how far imputations may be made on the way in which a tradesman carries on his business, we think we perceive a disposition on the part of the Judges to protect tradesmen in carrying on the keen competition which pervades trade.. We may refer to Mr. Justice Brett's ruling, upheld in the Common Pleas, in the case of Latimer v. The Western Morning News Company, where reflections upon a newspaper proprietor's mode of obtaining advertisements were held libellous, although the charge did not amount to one of obtaining money by false pretences. This element of personal misconduct, superadded to the reflection upon the nature of a tradesman's goods should, we apprehend, go to make an actionable defamation. That detraction of goods alone will not do without special damage has been distinctly held. In Young v. Macrae (32 L. J. 6, Q. B.), Chief Justice Cockburn said: "The defendant is alleged to have falsely and maliciously published a disparaging comparison between the oil manufactured by the plaintiffs, and that which he was advertising; but that allegation may merely mean that the part of the circular which relates to the American oil was false, and that it was not so good as represented," and he held that the action was not maintainable. That was a demurrer, and it being a mere slander of goods without any sufficient special damage, the demurrer was allowed. The importance of reflection upon the personal character of a tradesman will be seen by looking at the opening of the Lord Chief Justice's judgment in that case, in which he said that if special damage followed a disparaging reference to an article sold by a tradesman, even if no reflection is made upon his character, trade, or profession, he could not hold that an action would not be maintainable.
On this view of the case the majority of the Court of Queen's Bench may reasonably have felt more satisfied that the matter should be settled before the most appropriate tribunal—a jury.
THE OUSTING OF COMMON LAW JURISDICTION IN COUNTY COURTS.
WE propose to return to the discussion of the question raised by Mr. PITT TAYLOR at the Woolwich County Court, namely-Does the admiralty jurisdiction which has been conferred upon certain County Courts oust the old common law jurisdiction? Mr. TAYLOR Says that in admiralty causes--which may now arise within the body of a county by virtue of 3 & 4 Vict. c. 65-a County Court not having admiralty jurisdiction has no jurisdiction at common law.
Whether this is correct can only be ascertained by examining the bases of the concurrent jurisdiction of the Superior Courts of common law and equity in causes which may be brought in the Court of Admiralty, and in the first place it is to be observed that the jurisdiction vested in the Court of Admiralty in causes cognisable at common law is not substitutionary, but supplementary and cumulative. Take first the early Act of the present reign, extending the jurisdiction of the High Court (3 & 4 Vict. c. 65). That Act conferred upon the court many of the powers given to the common law courts in matters of procedure, and also gave it jurisdiction over claims of mortgagees, and questions of title in certain specified cases. But the 23rd section says, "Provided always, and be it enacted that nothing herein contained shall be deemed to preclude any of Her Majesty's courts of law or equity now having jurisdiction over the several subject-matters and causes of action hereinbefore mentioned, from continuing to exercise such jurisdiction as fully as if this Act had not been passed." The fact that this Act is not silent, but affirmatively saves the jurisdiction of the ordinary courts of common law and equity, is important upon the point under discussion. But the argument in favour of the common law jurisdiction being retained strengthens as we go on, for the Admiralty Court Act 1861, provides a jurisdiction in admiralty over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales. Now the object of this enactment, adding as it does a remedy in rem to the remedies at common law against the master or owner, is pointed out by Dr. Lushingtou in the case of The Pacific (10 L. T. Rep. N. S. 542). His Lordship said that the reasons of the enactments (3 & 4 Vict. and 20 Vict.) seemed to be plain: "A real action in the Admiralty Court is given against a foreign vessel in all cases, because the owner is assumed to be beyond the jurisdiction, and vice versâ it is denied against a British vessel where the owner is within the jurisdiction, or for a similar reason where the necessaries are supplied to the home port, because the presumption is that the supplies were made upon the personal credit of the owner who would there be known and trusted. In other words, the remedy against the ship is given only where a personal action against the owner would be fruitless, and then only when the supplies have not been made upon his personal credit." The statute was remedial; it gave a remedy which had not existed before, namely, against the ship, but the common remedy against the owner is strictly maintained. The same remark applies to causes for damage to cargo instituted by the owner or consignee or assignee of any bill of lading of goods carried into England and Wales (sect. 6.)
We now proceed to the actual case, that is to say, damage by collision. By sect. 7 the High Court of Admiralty has jurisdiction over any claim for damage done by any ship; "ship" being interpreted (sect. 2) to mean any description of vessel used in navigation not propelled by oars. There is nothing in the Act depriving the courts of common law and equity of their ancient jurisdiction over such causes, and as a matter of practice such causes have been repeatedly instituted, and where questions concerning jurisdiction have arisen, they have related to the limits of admiralty rather than of the ordinary jurisdiction, the Court of Queen's Bench having recently decided that the Court of Admiralty has not jurisdiction over a claim for personal injury and death arising under Lord Campbell's Act, on the ground that it did not come within the meaning of the word " damage" (Smith v. Brown, 24 L. T. Rep. N. S. 808; L. Rep. 7 Q. B. 729). It might be said that where the subject matter of the suit was damage, beyond dispute, within the meaning of the Admiralty Court Act, a court of common law would not have jurisdiction. But this is by no means a correct inference, for although the Admiralty Court is given jurisdiction in cases of damage by collision, thus enabling a party damnified to arrest the ship, neither directly nor by implication are the ordinary tribunals deprived of their jurisdiction over the personal action. And the rule is proved by the exception contained in sect. 13 of the Admiralty Court Act 1861 (20 Vict. c. 10), which provides in the same way as the Merchant Shipping Act 1854 provides, with reference to the Court of Chancery, that whenever any ship or vessel, or the proceeds thereof, are under arrest of the court, the said court shall have power to stop all actions or suits in relation to the same subject matter: (sect. 514 of 17 & 18 Vict. c. 104.) In the case of Milburn v. The London and South-Western Railway Company (23 L. T. Rep. N. S. 418;
L. Rep. 6 Ex. 4), the Admiralty Court made an order to stay all actions having reference to the same matter, a collision between two ships. The only statutory enactment binding the common law courts to stay proceedings, is sect. 226 of the Common Law Procedure Act 1852, which refers only to any writ of injunction, rule or order of either of the Superior Courts of law or equity at Westminster," and the court held that the order of the Court of Admiralty was not within that section, and refused to exercise the powers which it possessed at common law.
This being the state of the law concerning the jurisdiction of the superior courts, we have to consider whether the Legislature by the County Court Admiralty Jurisdiction Acts intended to abridge the subjects of County Court jurisdiction by taking away from every court, not an admiralty court, but being within the district of a court having admiralty jurisdiction, a part of its original common law jurisdiction. The words of sect. 5 of the Act of 1868 are very precise, enacting that no County Court, other than the County Court appointed to have admiralty jurisdiction, shall have jurisdiction within the district of the court so appointed "in any admiralty cause." Construed strictly, this may be said to deprive courts not having admiralty jurisdiction, of jurisdiction in every cause which comes within the definition of admiralty causes contained in the four clauses of sect. 3, and it might be said that the proviso at the end of sect. 5 supports this view; that proviso being "provided that all admiralty causes at that time pending in any County Court within that district may be continued as if no such Order in Council had been made." The beginning of the section is, however, from and after the time specified in each Order in Council," so that the proviso may be taken to refer to a transfer of admiralty jurisdiction. Putting the proviso aside therefore, and looking at the extension of the definition" admiralty causes by sect. 2 of the Act of 1869 (32 & 33 Vict. c. 51), we feel that it is difficult to come to the conclusion that County Courts not having admiralty jurisdiction are not to have any jurisdiction at all as regards matters maritime, whether they be exclusively admiralty suits, that is, suits in which an admiralty court alone can do justice by giving a remedy against the ship, or ordinary contracts as for necessaries supplied to a ship on the credit of the owner. What we believe the Act means is simply this, that no County Courts, save those which are appointed by an Order in Council, shall have admiralty jurisdiction; but that where there is concurrent jurisdiction in the Superior Courts it shall also exist in the County Courts. In opposition to this view we have the opinion of a shrewd and able County Court Judge. We have argued the question by analogy, and without an interpretation of a Superior Court it is impossible to express a decided opinion one way or the other.
THE CENTRAL CRIMINAL COURT.
THE CLERK OF ARRAIGNS has been constituted, or has constituted himself, a quasi public prosecutor. This is an important step, and will interfere to some extent with the employment of attorneys in criminal cases, and, unless Mr. AVORY is very circumspect, may cause some irritation amongst the members of the Bar. obtain our information from the newspapers, where we find it stated that he "promises, on the application of any prosecutor, and in the event of the case being a proper one, to instruct counsel to conduct it." If this plan be generally followed, it will cause somewhat of a revolution in Old Bailey practice. But any revolution must produce an improvement.
Now, as to the other regulations. We are informed that within and without the Sessions-house in the Old Bailey, placards in large type have been posted-first of all to warn prosecutors, witnesses, and policemen, that any persons detected in making false representations to the taxing officer as to the duration of attendance, cost of travelling, employment of attorney, or any other matter, with a view to obtain larger allowances than the facts justify, will be immediately given into custody, and prosecuted for attempting to obtain money by false pretences, and on conviction will be liable to be imprisoned for two years; and secondly, to inform prosecutors that the Court and its officers do not sanction, but expressly forbid, the proceedings of certain persons frequenting the precincts of the Old Bailey who solicit to be allowed to conduct prosecutions and instruct counsel without cost to the parties. Then, as to procedure, each attorney before obtaining the fees from the taxing officer, must swear an affidavit to the effect that he has been duly retained and instructed by the prosecutor, and that he delivered a brief to a barrister (whose name he will have to give), and paid him a fee of such and such an amount in cash and in respect of that brief. He will also have to produce the written retainer of his client, and the receipt of the barrister, and in each instance to swear that the handwriting is that of the person named. This affidavit will be required from the attorney personally, and not from any clerk or person on his behalf. Each of the attorneys practising at the court will also have to file an affidavit stating that such and such a person acting as his clerk is actually in his service, and is paid by salary periodically, and not by any commission on business done, nor by an arrangement to divide profits on such business.
The only question which arises on this is, are the regulations in
any respect too stringent? We cannot say that they are. each attorney keeps but one clerk for criminal business, a single short affidavit for his identification will suffice. The retainer in writing by the client is only what every solicitor requires in civil business; whilst the signature of the barrister in certifying the receipt of the fee is supposed to be now given in every case. the latter direction there is the same field for disreputable proceedings; but Mr. AVORY has done his utmost to protect the Bar, and it will be greatly to the advantage of all practising members if they will accept his assistance and insist upon bona fides in all their transactions. The present is an excellent opportunity for turning over a new leaf in criminal practice, and it is really in the hands of the Bar to render the reform effectual and complete.
AS TO EASEMENTS ARISING ON THE DETERMINATION OF UNITY OF POSSESSION.
A DOUBT often occurs as to what easements attach to several tenements when their unity of possession is destroyed.
The well-known principles-"that a grant of property carries every right necessary for the enjoyment of the property," and that no one can derogate from his own grant"-serve in a great measure to solve the question; but it presents itself in different aspects:
1. Where the two tenements are disposed of by the owner simultaneously, as by devise;
2. Where one only is conveyed away, and—
(a) An easement is claimed in respect of the tenement conveyed, over that retained;
(b) An easement is claimed in respect of the tenement retained, over that conveyed.
Of the cases lately decided, Polden v. Bastard (13 L. T. Rep. N. S. 441) illustrates the first alternative. There, a testator possessing two houses, devised one of them as now occupied by A. B.," to C. A. B. and his predecessors had been in the habit of using the pump belonging to the other house; but it was held that the right of using the pump was not given to C., inasmuch as it was not an easement continuous, or of necessity. It is presumed that a right of way is necessary, but not continuous; and that a right to a watercourse is both continuous and necessary.
Watts v. Kelson (40 L. J., N. S., 126, Eq.) was as follows: The owner of two closes conveyed away one of them, "with all waters, &c., thereunto belonging." There was at the time a natural watercourse through the close retained, which the owner had carried by an artificial pipe down to some cattle sheds upon the close sold; and it was held that the right to the watercourse passed either under the general words in the conveyance, or by implied grant; and, further, that the fact of the purchaser being about to build houses in lieu of the cattle sheds, and to apply the stream to the purposes of the houses, made no difference, as he had a right to dispose of the water in any way he liked, after it had once come on to his land.
In Pyer v. Carter (1 H. & N. 916), the owner of two adjoining houses sold one under which a drain existed for the use of the other: he subsequently sold the remaining one, and the purchaser of it claimed to use the drain. One point attempted to be made in the first purchaser's favour was, that he had had no notice of the easement claimed, and, therefore, that he ought not to be subjected to it. It appeared that another drain could have been made for the use of the house last sold, which would not have passed through the other premises; but judgment was given against the first purchaser, inasmuch as the easement was one of necessitynecessary, not because no other drain could have been made, but necessary having regard to the state of things existing at the sale.
In Suffield v. Brown (9 L. T. Rep. N. S. 192 and 627), a dock and an adjoining wharf had been under the same ownership: the bowsprits of the vessels lying in the dock had usually projected over the wharf, and indeed, in the case of the largest ships, this was unavoidable. The wharf was sold without any qualification, and the purchaser designed to build a warehouse which would block up the space where the bowsprits had projected. The owners of the dock attempted to have him restrained from so doing, but unsuccessfully, on the ground that the sale of the wharf had been unconditional and without reservation. Lord Westbury, in giving judgment, based his decision on the principle that no one can derogate from his own grant, and remarked that, according to this principle, Pyer v. Carter was bad law. It will be observed, however, that the two cases were not exactly similar; in the one, the easement claimed was both continuous and of necessity; in the other, it was neither continuous, necessary, nor apparent.
In Ladyman v. Grave (25 L. T. Rep. N. S. 52), a house had been sold, with windows looking over a piece of land of which the vendor had a lease for ten years, and of which he subsequently acquired the fee, but the right to the lights had not been enjoyed long enough to have become a legal easement. For this reason it was held that the vendor could not be restrained from building on the piece of land so as to obstruct the lights. In Suffield v. Brown Lord Westbury appeared to attach little weight to the question what easements had become absolute before the union of possession, guiding himself rather by the presumed intention of the
parties on the sale; and, in the present case, it might be urged that the judgment should have depended on the same criterion. The house was sold with all rights thereto belonging, and it cannot be presumed that the purchaser ever contemplated having his lights obstructed, at least for so long as the vendor's lease gave the latter the control over the piece of land. Probably, however, no obligation would attach on the reversion in fee, as the easement claimed had not become absolute so as to bind third parties, and the vendor himself could not be held to have affected that reversionary interest which he did not possess at the time of sale.
Having regard then to the authorities, the following principles appear deducible :
1. If the owner of the two tenements dispose of them simultaneously to different persons, those easements only will attach to the several tenements which are continuous or necessary.
2. If the owner sells one of the properties, retaining the other, such rights will pass with the former as may be necessary, (or perhaps convenient), for the enjoyment of it in its existing state, or in any altered state which the parties may contemplate at the time of sale; e.g., if land is sold expressly for building purposes, the vendor will not be at liberty to interfere with the lights which may be strictly necessary for the new buildings. In Suffield v. Brown, the counsel for the defendant seemed to admit that, if the dock had been sold before the wharf, the owner of the dock might have been entitled to the easement claimed, because it was in some measure necessary for the use of the dock. In these cases, a liberal construction will be made in favour of the purchaser.
3. The owner will not be entitled to any right in respect of the property retained, over property sold without any reservation or qualification, except such easements as are continuous and necessary, or necessary alone.
The Ancient Land Settlement of England. By J. W. WILLISBUND, M.A.
CAN it be considered a matter of importance what was the nature of our ancient settlement of land? The prevailing disposition in some quarters is to disregard everything but the wants of a portion of the population, whose ideas are communistic, and it is very little use to attempt to rebut arguments advanced by them by references to the ancient settlement of land. Mr. BUND, however, has done this. He has taken the programme of the Land Tenure Reform Association, and then proceeded to give a history of our ancient laws. He therein follows what is becoming a general opinion amongst lawyers, that we have attributed too much importance to the feudal system, on the hypothesis that it was introduced by the Conqueror. He says: "To an English
lawyer regarding the whole system of the law of real property as an offshoot of feudalism, it seems something like treason to doubt that any English custom connected with land is not either directly or indirectly connected with the feudal system, or that in all cases where any local custom exists, if it is inconsistent with this theory, that the custom is only a mere local encroachment upon it. Instead of this, it would really seem that the local custom is a trace of a system of legal thoughts and ideas which existed long before feudalism was even heard of, and which has even survived it. Yet such seems clearly the case. We find the scattered relics of a primeval society still existing in this country that point unmistakeably to our descent from the tribes of Germany, relics of a society that our Saxon ancestors brought with them before the name of Norman was even heard in England, which have survived through upwards of ten centuries through the ravages of the Norman and Angevin dynasties, the feudal system, and even through the yet keener assaults of the destructive legislation of reformed parliaments."
And further, as to the feudal system, he writes, "The establishment of feudalism in this country must have been a slow and gradual process. Notwithstanding the popular idea that William introduced the feudal system at once by an express law, modern research seems to prove that if it did not exist in name, it did so at least in form and principle, under the Saxons. But for our purpose, for the origin of the doctrine of separate, as opposed to common ownership, I think we are indebted to the Conqueror."
Mr. BUND throws out a suggestion which he thinks will cast some light on the position of customary freeholds. He observes, "As already stated, one of the great changes that feudalism brought about was the conversion of what had been common into exclusive property; in other words, to vest the property that had formerly belonged to the whole community in the lord. In technical language, the freehold of the land was vested in the lord. Hence we find it stated that the soil of all the uninclosed or commonable lands of a township is in the lord. But this rule is not without exceptions; traces of the earlier state of things may still be found. Manors exist even now where the soil is not in the lord, but belongs to the commoners themselves. It has generally been assumed that the lord had in some way parted with his right to the soil, but no traces as to when and how the transfer took place can be found. It does not seem an unnatural conclusion to draw, that these cases formed an exception to the general rule; that here the lord never acquired the ownership of the soil; the old village community retained their rights; and that the explanation is, not that by some unknown cause they have acquired the right to the soil from the lord, but that in these cases the lord's right never prevailed over theirs."
The whole question of tenure as affected by ancient law is ably dealt with and many interesting points will be found in Mr. BUND'S lecture, though its practical effect or utility is very doubtful.
NOTES OF THE WEEK. COURT OF APPEAL IN CHANCERY. Thursday, Nov. 16.
(Before the LORD CHANCELLOR (Hatherley). PRIDE v. BUBB.
The Solicitor-General (Jessell, Q. C.), Sir R. Baggallay, Q. C., Southgate, Q. C., Collins, C. Hall, and Taylor, appeared.
The LORD CHANCELLOR (affirming the decree of the Master of the Rolls) held that the separation deed gave Mrs. Welch a power to dispose of all her real estate by will. The bill was therefore
Married woman-Real estate-Power to dispose of dismissed with costs. by will.
THIS was a case of equitable ejectment, in which the plaintiffs claimed as heirs and the defendants as devisees of Margaret Welch, who died, without leaving issue, in 1851, in the lifetime of her hus band. The legal estate in the hereditaments to which the suit related was outstanding, but in equity Mrs. Welch was entitled to them for her separate use during the joint lives of herself and her husband, with remainder to herself in tail, remainder to herself in fee; and in 1846 she and her husband separated, and a deed was executed, which was acknowledged by her, and which contained a recital that it was agreed that she should hold all real estate to which she or her husband in her right might be entitled, for her sole and separate use. The deed contained a disposition of the estate vested in Mrs. Welch for the joint lives of herself and her husband, and also of other hereditaments not affected by the suit; but it contained no disposition of her estate tail or reversion in fee, in the hereditaments sought to be recovered. It was contended that a married woman could not obtain a power to dispose of her real estate by will, unless she actually conveyed it in proper form to such uses as she should by will appoint, and that a mere agreement between her and her husband, although by deed acknow. ledged, was insufficient.
Solicitors, White and Son; Gabriel.
Ex parte BOYLE; Re COLLETT. Bankruptcy Act 1869-Fraudulent preferenceBill of sale-Payment out of money advanced. THIS was an appeal from a decision of the Chief Judge, partially reversing a decision of the Judge of the County Court of Somerset, holden at Bridgwater. On the 15th July 1870, Collett bor. rowed 2007. from his solicitor, Boyle, on the security of a bill of sale. At the same time that Boyle handed Collett his cheque for 2007. he presented him with his bill of costs, which amounted to 87., and Collett paid this out of the 2001. On the 3rd Aug. 1870, Collett filed a petition for liquidation of his affairs by arrangement. The property comprised in the bill of sale was afterwards sold and paid into court, and Boyle claimed for the full amount secured by the bill of sale and also to retain the 871., and the Judge of the County Court allowed both claims. The Chief Judge, on appeal, held that the payment of the 871. was voluntary, and constituted a voluntary preference, and therefore, disallowed the 871. and gave Boyle 101. 10s. for his costs. From this decision, which is reported under the name of Ex parte Wrenford; Re Collett, (24 L. T. Rep. N. S. 638), Boyle now appealed.
Lord Justice JAMES said that he would treat the question as one purely of fact, and not with reference to the 92nd section of the Bankruptcy Act of 1869. He was of opinion that Collett paid the 871. under the impression that he would not get the 2001. without doing so, and that, therefore, the payment was not voluntary, and did not amount to a fraudulent preference.
Lord Justice MELLISH was of the same opinion. He thought it a great misfortune that a question of fact of this kind should have to be decided by three tribunals - the County Court, the Chief Judge, and the Court of Appeal. This arose from the County Court judge not hearing the witnesses himself, or having questions of fact tried by a jury, as he might do. In the present case he thought that the presentation of the bill of costs amounted to a demand for payment, so as to make the payment not a fraudulent preference. The decision of the Chief Judge must, therefore, be reversed as to the 871., Boyle to have his full costs of the appeal to the Chief Judge, but no costs of the present appeal to be given.
Solicitors for the appellant, Reed and Lovell, for Reed and Cook, Bridgwater.
Solicitors for the respondent, Torr, Janeway, Tagart, and Janeway, for Carslake and Barham Bridgwater.
Saturday, Nov. 18. FARHALL V. FARHALL. Administration suit-Executorship account-Mortgage to bank-Sale of mortgaged propertyBalance still due to bank. THIS was an appeal from a decision of Bacon, V.C. Richard Farhall being at the time of his death, in Dec. 1861, indebted to the London and County Bank in a sum of 1000l., for which he had deposited with them the title deeds of his estate, by his will empowered his executors, in aid of his personal estate, to mortgage and grant powers of sale of the whole or any portion of his real estate. On application by the testator's widow, who acted as sole executrix, to be allowed to draw on her late husband's account, the bank refused to honour cheques drawn by her in her personal character, but opened an account with her entitled Mr. Richard Farhall's executors' account,' and honoured cheques upon it, signed Mary Farhall, for executors of Richard Farhall." Subsequently the executrix agreed to charge the property, of which the bank held the title deeds, with the current balance, and deposited other title deeds with them to secure the sum then due to them and further advances. Of the moneys drawn out from time to time, the bulk was applied by the executrix for the personal expenses of herself and her children, and in various speculations. The real estate, of which the bank held the title deeds, having been sold, and the proceeds thereof being insufficient to satisfy the amount due to the bank, they applied for leave to prove in the suit against the testator's general estate for the balance still due to them, with interest and costs. Bacon, V. C. admitted the claim (see 24 L. T. Rep. N. S. 610; L. Rep. 12 Eq., 98), and the plaintiff appealed from his
Fry, Q.C. and Ince, for the appellant.
Kay, Q. C. and Waller, for the respondents. Lord Justice JAMES was clearly of opinion that there was no legal debt. To hold that the mere fact of an executor opening an account with a bank in his character of executor, would create a debt against the testator's estate, would be to give an executor unlimited power over his testator's estate. An executor could charge his testator's estate, but the mere fact of his borrowing from anyone in his character of executor would not create a charge upon the testator's estate. The executrix in this case was personally liable, and the claim of the
bank must be disallowed.
Lord Justice MELLISH was of the same opinion. It was settled by the authorities that in such a case as this the executor was personally liable,
and not the testator's estate. To hold the con
trary would be to allow debt contracted by the executor to come into competition with the debts of the testator."
Order accordingly discharged with costs. Solicitors for the appellant, Stephens and Matthews.
Solicitors for the respondents, Stevens, Wilkinson, and Harries.
Tuesday, Nov. 21.
CARVER V. PINTO LEITE. Discovery-Trade mark-Infringement. THIS was an appeal from an order made by Wickens. V.C., when Vice Chancellor of the County Palatine of Lancaster. The suit was instituted by Messrs. Carver Brothers and Co., who
are general merchants and commission agents, carrying on business at Manchester, to retrain Messrs. Pints, Leite, and Son, who carry on the business of commission agents at Manchester, from using or placing on the cotton cloths exported by them certain numbers, letters, and other marks which the plaintiffs alleged to be their own trade marks. An order having been made in the suit that the defendants should produce certain books, &c., with liberty to seal up such parts of them as did not relate to the subject matter of the suit, the defendants sealed up considerable portions of the books, and on an application by the plaintiffs for further discovery, the Vice-Chancellor made an order that the defendants should unseal the portions of the books showing the prices paid for goods to the manufacturers, the places to which the goods were sent, the names of the writers of certain letters, and the names of the persons to whom the letters had been sent. The defendants appealed from this order.
North for the appellants.
Lord Justice JAMES was of opinion that the Vice-Chancellor was substantially right. The general rule was that when discovery was ordered, full discovery must be made of everything material to the plaintiff's case, except its production would be of overwhelming injury to the defendant. In this case the discovery of the names of their customers, and of the prices paid for their goods, might be very injurious to the defendants, and could not be of any material service to the plaintiffs. Therefore the order must be varied by
Bankruptcy Act 1869, ss. 23, 31-Landlord and
v. WALFORD. Plea-Powers of directors-Deed of settlement. THIS was an appeal from a decision of Mr. RegisLlynvi Coal and Iron Company for leave to prove trar Brougham dismissing an application by the THE bill in this suit was filed by the official liquidator of the plaintiff company against the late for the injury inflicted upon them by reason of the directors of the company and others, and prayed trustee in the bankruptcy having disclaimed, under that it might be declared that a certain indenture the 23rd section of the Bankruptcy Act 1869, an of the 2nd March 1868 was not binding upon the agreement for a lease between the company company, and that the same might be decreed to and the bankrupt. It appeared that by an be delivered up to be cancelled. The bill alleged that the affixing of the seal of the company to agreement made in 1869 between the pany and the bankrupt, the company had such indenture by the directors thereof, was agreed to let to the bankrupt certain shops ad- beyond the powers of such directors, and that joining the premises of the company for ten such indenture was not binding as against the Two plaintiffs. The defendants, Alfred Smee and years, at the rent of 500l. per annum. years after the date of the agreement, the bank. Edward Shirley Kennedy, two of the late directors, rupt, having failed to carry on his business profit- filed a plea, which set forth a clause of the deed of settlement of the plaintiff company, showing ably, filed his petition for liquidation by arrangement, and the trustee disclaimed the agreement the powers thereby given to the directors, and for a lease under the 23rd section of the Act, averred that the acts of the directors on behalf of instead of selling the shops as going concerns, the plaintiff company, which preceded and occasioned the said indenture of the 2nd March whereby the company alleged that the shops were so much reduced in value that they could only obtain a rent of 3001. a year for them. The company now appealed from the registrar's decision of the injury thus occasioned to them. that they were not entitled to prove for the amount
Winslow and Lindley, for the appellants.
Lord Justice MELLISH was of the same opinion.
Solicitors for the trustee, Parker, Lee, and
Thursday, Nov. 23.
Ex parte BOLLAND; Re CHERRY. Bankruptcy Act 1869, s. 92-Fraudulent preference. THIS was an appeal from a decision of the Chief Judge, reversing a decision of the Judge of the Liverpool County Court, whereby it was declared that a certain payment made by the bankrupt amounted to a fraudulent preference, and the payee was ordered to refund the amount to the trustee of the bankrupt's estate. The hearing of the case before the Chief Judge is reported in 25 L. T. Rep. N. S. 276, where the facts of the case will be found fully stated. The question as to the payment was tried by the judge and a special jury, who found that the bankrupt was, at the time of the payment, unable to pay his debts; that he had not made the payment with the view of preferring the payee over his other creditors; and that the payment was made voluntarily and without real pressure from the creditor at a time when the debtor might be reasonably supposed to know that bankruptcy was imminent.
Herschell (of the Common Law Bar, with him Little, Q.C.), for the trustee, who appealed from the order of the Chief Judge.
De Ger, Q.C. (and Charles Russell, of the Common Law Bar), who appeared in support of the order, were not called upon.
Lord Justice JAMES said that in his opinion the decision of the Chief Judge was perfectly well founded. The proper question had been left to the jury, namely, whether the payment was made with the view of preferring the payee over the other creditors, and the jury had found that it was not so made. The other findings of the jury were said to
1868 were within their powers and authorities, and the said indenture was sealed and delivered by order of the directors of the plaintiff company acting within their powers, and was binding on the company.
Fooks, Q.C., Locock Webb, and W. C. Fooks, in support of the plea.
Swanston, Q.C. and Graham Hastings, appeared for the official liquidator.
Lord ROMILLY overruled the plea, with costs,
observing it was merely a contradiction of the allegations in the bill, and did not come within the definition of a plea, which was the statement of
a new fact which, if introduced into the bill, would
render it demurrable.
Solicitors, Harper, Broad, and Co., and H. Jackson.
Re CONTRACT CORPORATION (LIMITED) (GOOCH'S CASE).
Official liquidator ·
Affidavit - Production of documents.
THIS was an adjourned summons on the part of Mr. Gooch, an alleged contributory, requiring an affidavit by the official liquidator as to documents in his possession relating to the question at issue between them. The official liquidator offered an inspection of the papers and documents, of which there was an immense mass, and it was contended on his behalf that he ought not to be compelled to make the affidavit, and put to the expense of searching through and scheduling them.
The Solicitor-General (Jessel, Q.C.) and Bagshawe appeared in support of the summons.
Sir Richard Baggallay, Q.C. and J. W. Chitty for the official liquidator.
Lord ROMILLY said the official liquidator was in the same position as a defendant under the old practice when interrogated as to the documents in his possession. It was ultimately agreed that the official liquidator should furnish the affidavit.
Solicitor for Mr. Gooch, H. W. Valance. Solicitors for the official liquidator, Linklaters and Co.
Nov. 3, 4, 6, and 20. THE COMMISSIONERS OF SEWERS OF THE CITY OF LONDON v. GLASSE. Right of common-Suit to enforce--Jurisdiction -Demurrer-Multifariousness-Want of parties. THIS was a suit by the plaintiffs, as owners and occupiers of certain lands near Barking within the boundaries of Epping Forest, on behalf of themselves and all other the owners and occupiers of lands and tenements within the forest, except the defendants, against the lords of several manors within the boundaries of the forest, and against the Attorney-General, as representing the Crown, Epping Forest being a royal forest. The bill prayed that it might be declared that the plaintiffs and the other owners and occupiers of lands and tenements within the forest were entitled to the right of common of pasture over the waste lands of the forest, and that the defendants might be restrained from enclosing or permitting to remain enclosed, any part of the waste lands of the forest which were subject to such commonable rights. The defendants demurred to the bill for want of jurisdiction, the Forest Courts being, they con