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Vol. 133.-No. 3617.

The Law and the Lawyers.

Business in the Courts.

On Wednesday next the present sittings will come to an end, and, so far as the King's Bench Division is concerned, a record has been created, but one, we trust, which will never be repeated or even approached. During the past month the trial of actions in London has practically ceased, and even in other directions it has been impossible to make any progress whatever. As we stated a fortnight ago, special jury and common jury actions set down in April last still remain untouched, while both the Crown Paper and the Civil Paper are very much in arrear. No blame whatever can be attached to the judges, who, with inadequate power at their disposal, have done their level best to deal with the position. At the beginning of next sittings, in October, for some weeks strenuous efforts will be made to cope with the lists; but spasmodic efforts of this description-which, of course, are the only means possible-are to be strongly deprecated, and the only way in which the common law business of this country can be properly dealt with is by having a sufficient staff of judges to enable regular and steady progress to be made with the lists.

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Horsell, where the question arose as to the meaning of the word" adjoining." In that case a lease was granted to the plaintiff of a shop, being one of a terrace of six, and he covenanted only to carry on a certain trade thereat, and the landlord covenanted that he would not let any of the adjoining shops for the purpose of a like trade. In breach of that covenant, as it was alleged, the landlord let another shop in that terrace, and in the subsequent action which was brought it was contended that the word "adjoining" must be confined to the shops immediately contiguous to that of the plaintiff. Mr. Justice PHILLIMORE was of opinion that under the circumstances the meaning was not so confined and that a breach of the covenant had been committed, and in this he has been upheld by Lord Justice FLETCHER MOULTON and Lord Justice BUCKLEY, Lord Justice VAUGHAN WILLIAMS taking a contrary view, considering that in dealings with land the word "adjoining" should have a fixed and settled meaning. While in no way desiring to controvert the convenience which would result from the adoption of the opinion of the dissenting Lord Justice, we agree with Lord Justice FLETCHER MOULTON that the surrounding circumstances must be borne in mind and the words of the lease must be construed as a whole. Those words in the lease in question were" any of the adjoining shops and not "either of the adjoining shops," and to have held otherwise than as now declared to be the law would have entirely destroyed the benefit of the covenant as clearly intended to be given to the tenant.

Annual Licence Value.

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THE difficulty of construing enactments relating to the revenue, and particularly those of recent years, has again been demonstrated by the case Re The Eagle, in which the question arose as to the basis upon which the annual licence value of licensed premises should be ascertained. Mr. Justice HAMILTON was of opinion that the annual licence value should be ascertained in accordance with the mode of calculating the amount to be paid as compensation under sect. 2 of the Licensing Act 1904 (now sect. 20 of the Licensing Consolidation Act 1910) and that the provisions of sect. 44 (2) of the Finance (1909-10) Act 1910 had not been affected by sect. 8 of the Revenue Act 1911, and on this point all the members of the Court of Appeal apparently agreed with him. He held, however, that, in arriving at the annual licence value, so much only of the value arising from the sale of commodities other than intoxicating liquors as arose from profits which might have been made upon the premises if they had not been licensed should be taken into consideration. This was acquiesced in by Lord Justice KENNEDY; but the Master of the Rolls and Lord Justice FARWELL considered that, having regard to the words of sect. 44 (2), which provides :

In estimating for that purpose the value as licensed premises of hotels or other premises used for purposes other than the sale of intoxicating liquor, no increased value arising from profits not derived from the sale of intoxicating liquor shall be taken into consideration,

Mr. Justice HAMILTON was wrong upon this second point. Lord Justice FARWELL pointed out that the Legislature intended to avoid difficulties of assessing items, and directed the valuers that in estimating the value they were on no account to take into consideration any increased value arising from profits not derived from the sale of intoxicating liquors, and both he and the Master of the Rolls came to the conclusion that the true construction of the section was its natural meaning. It is

a difficult and important case, and, owing to its farreaching effects, we have little doubt that it will be taken to the House of Lords.

NEGLIGENCE CLAUSES IN CONTRACTS OF
AFFREIGHTMENT.

IN the preface to one of the leading text-books dealing with maritime matters, written over twenty years ago, the learned author remarked that "shipowners also have gradually protected themselves by exceptions in their bill of lading against every risk of liability for damage to the goods they carry, until the bill of lading contains fifty or sixty lines of closely printed conditions and exceptions, and there appears to be no duty imposed on the fortunate shipowners but that of receiving the freight." This somewhat caustic observation serves to illustrate the nature of modern bills of lading, the print being, as the author suggests, in tiny type which alone has often been. adversely commented on by judges.

Practically every bill of lading and charter-party contains what is known as a negligence clause, usually of a very comprehensive character, as appears from the following, which is a form commonly used by a railway company in connection with their steamer service, and which exempts them from liability for all accidents occasioned by "any act, neglect, error, misfeasance, or default whatsoever of the master, officers, engineers, crew, stevedores, servants, or agents of the shipowners, or other persors whomsoever in the management, loading, stowing, and transmitting the cargo, or in navigating the ship or otherwise. .

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Generally speaking, negligence clauses are construed strongly against the shipowner. In the well-known case of Price v. Union Lighterage Company (88 L. T. Rep. 428; (1903) 1 K. B. 750) Mr. Justice Walton said: ". An exemption in general words, not expressly relating to negligence, even though the words are wide enough to include loss by the negligence or default of the carrier's servants, must be construed as limiting the liability of the carrier as assurer, and not as relieving him from the duty of exercising reasonable skill and care. If the carrier desires to relieve himself from the duty of using by himself and his servants reasonable skill and care in the carriage of the goods, he must do so in plain language and explicitly, and not by general words." In that particular case the defendant, a barge owner, was exempted from liability "for any loss or damage to goods which can be covered by insurance," and it was argued on his behalf that, as negligence on the part of his servants could be insured against, he was not liable, but Mr. Justice Walton, applying the principle laid down above, held that he was liable. In The Pearlmoor (90 L. T. Rep. 319; (1904) P. 286) the bill of lading contained the following marginal clause: “In no case is the steamship to be held liable for heating or any other damage accruing to the within-mentioned goods, nor for insufficient strength of bagging," and in the body of the bill of lading there was an exception, relied upon by the owners of the steamer, with respect to loss or injury occasioned by "any act or omission, negligence, default, or error in judgment of stevedores or other persons in the service of the shipowners." There, Mr. Justice Gorell Barnes, following Price V. Union Lighterage Company (sup.). held that the shipowners were not relieved from liability for damage arising from heating occasioned by the negligence of the defendants' servants in improperly stowing the goods. The learned judge pointed out the marginal clause only occurred in a bill of lading which dealt with negligence in certain specific cases, and negligence being thus dealt with in certain specific cases, and general words being used elsewhere, led to the conclusion that if in such a marginal clause the negligence of the shipowner or his servants was to be excluded, the language should expressly refer to that

exclusion.

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In Nelson Line (Liverpool) Limited v. J. Nelson and Sons Limited (97 L. T. Rep. 812; (1908) A. C. 16) the shipowners were protected by an exception in the charter-party in respect of unseaworthiness or unfitness of the ship, "provided all reasonable means have been taken to provide against unseaworthiness"; negligence on the part of their servants; and also "for any damage or detriment to the goods which is capable of being covered by insurance or which has been wholly or in part paid for by insurance.” The goods in this case were seriously damaged through a defect in the refrigerating apparatus, and it was found as a fact that through the neglect of the defendants

reasonable means had not been taken to prevent such unfitness. The plaintiffs were partially covered by insurance, and had in fact been paid the insured proportion of the loss. Mr. Justice Bray and the Court of Appeal, following Price v. Union Lighterage Company (sup.), held that the shipowners were liable, notwithstanding the fact that the damage had been partially paid for by insurance, as they were not exempted from liability for damages arising from their obligation to provide a seaworthy ship, having failed to take reasonable means to provide against its unfitness, and these decisions were affirmed by the House of Lords.

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In the case of Rosin and Turpentine Import Company Limited v. Jacob (101 L. T. Rep. 56) the defendants agreed to lighter goods on the terms of the following clause which was printed on their invoices and memoranda : "The rates charged by B. Jacob and Sons Limited are for conveyance only, and every reasonable precaution is taken for the safety of the goods whilst in craft; they will not be liable for any loss or damage, including. negligence, which can be covered by insurance, and the shipper in taking out a policy should effect same 'without recourse to lighterman,' as B. Jacob and Sons Limited do not accept responsibility for insurable risks." Mr. Justice Bray and Cozens-Hardy, M.R. in construing this clause took the view that the language of the words every reasonable precaution is taken for the safety of the goods whilst in craft was inconsistent with the subsequent clause that the defendants "will not be liable for any loss or damage, including negligence, which can be covered by insurance," and that the language used by the defendants was not so clear and unambiguous as to leave no doubt in the mind of the shipper as to the extent of the advantage which he was to get by the contract. Lords Justices Farwell and Kennedy took the opposite view, which was subsequently affirmed by the House of Lords, Lord Collins dissenting. Lord Loreburn, L.C. in giving judgment read the clause as meaning: "You must not suppose that we are careless people, but we will not accept liability; you must insure if you wish to be protected both from our own and our servants' negligence." Lord Collins differed on the ground that the language was ambiguous, and that the lightermen were liable on the principles laid down in Elderslie Steamship Company v. Borthwick (92 L. T. Rep. 274; (1905) A. C. 93) and Nelson Line (Liverpool) Limited v. J. Nelson and Sons Limited (sup.).

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It should be remembered that railway companies running a service of steamers stand in a different and less favourable position than the ordinary shipowner with regard to negligence clauses. The Railway and Canal Traffic Act 1854, s. 7, provides (inter alia) that railway companies shall be liable for any loss or injury to goods occasioned by the neglect or default of the company or its servants, "notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability, every such notice, condition, or declaration being hereby declared to be null and void," with the saving provision that nothing in the section should be construed to prevent the companies making such contracts as should be adjudged by a court or judge to be just and reasonable. There. fore in every case where a railway company is relying on a negligence clause the court has to determine whether under the circumstances the clause is reasonable. illustration of how this works in' practice, reference may be made to the case of Riggall v. Great Central Railway Company (101 L. T. Rep. 392; 14 Com. Cas. 259), where a railway company were relying on a negligence clause in one of their bills of lading which had been inserted during the previous thirtyfive years. It was held in this case that as there was no bonâ fide alternative rate of freight such a contract was not "just and reasonable within the meaning of the section (and see also Jenkins v. Great Central Railway Company, 106 L. T. Rep. 565).

As an

In conclusion, it may be mentioned that an exception of negligence on the part of a shipowner or his servants does not afford protection where a vessel puts out to sea in an unseaworthy or unfit condition occasioned by such negligence, unless there is an express exception to this effect couched in clear and unambiguous language.

Second Sheet

LEGAL EDUCATION.

THE work for the year 1911-1912 of those responsible for legal education in England may be said to have come to an end at the annual meeting of the Society of Public Teachers of Law on Friday, the 5th July. That meeting was held in the Parliament Chambers of the Middle Temple; and one of the matters considered at it was a communication from the Council of the Law Society discussing and largely adopting recommendations made by a special committee of the society in respect of the education of articled clerks. After the meeting the members of the society were entertained at dinner by the Treasurer and Benchers of the Middle Temple in the ancient hall of the Inn.

The action of the Council of the Law Society and of the Treasurer and Benchers of the Middle Temple may be regarded as a notable recognition by the " practical" lawyers of both branches of the Profession of the status of the professional teacher of law. It is strange that any such recognition should be notable at this time of day. Centuries ago the teaching of law by lecture, moot, and class was held to be the most important duty of the Inns of Court. Each of these provided Inns of Chancery where every student underwent preliminary training before being admitted to an Inn of Court. After he was admitted he pursued a long course of study under the direction of Readers appointed by his Inn; and it was only when he satisfied these Readers that he had acquired a sound knowledge of law that he was permitted to be called to the Bar. But during the eighteenth century, which in many ways was an age of stagnation and sinecure, this whole system of education was allowed to become obsolete. The Readers continued to be appointed by the Inns, but they ceased to teach. The Inns of Chancery continued to exist, but they became the private Ancients property of the " who controlled them. The same state of things prevailed at both the universities. As Professor Goudy pointed out in his introductory address as president of the Society of Public Teachers of Law, before 1852 there were only two chairs of law in Oxford-the Regius Chair of Civil Law and the Vinerian Chair of Common Law-and the common characteristic of both was that nobody expected their occupants to do anything. The Regius Professor was a prebend of Salisbury, where he usually resided. The Vinerian Professor was not infrequently an Indian or colonial judge visiting the university once in ten or twenty years.

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Shortly, during the whole of the eighteenth century and the first half of the nineteenth, so far as the universities and the Inns of Court were concerned, the law student was allowed to pick up his knowledge of law wherever he could find it. He usually found it in barristers' chambers or solicitors' offices. He went to a pupils' room where he fought with lions. If he succeeded in learning anything it was by dint of persistent industry-no doubt a quality pretty sure to bring its owner, sooner or later, success in the practice of the law.

But the drudgery necessary to learn the first elements of law had two very evil effects. In the first place, it disgusted and alienated some of the finest intellects which came to its study. Both Mr. Gladstone and Lord Beaconsfield commenced as students of Lincoln's-inn] and both retired before qualified for call, and both to the end of their days entertained a profound contempt for the "science" of law, and also-rather unreasonably-for its professors. Lord Bowen himself was saved from the same fate as by fire. He spent the first and worst part of his study of law in a conveyancer's chambers, and until his death he remembered his experiences there with such bitterness that in going home he used to make a detour in order to avoid passing a place which recalled those depressing days to his memory.

The other evil was that, the law not being scientifically considered or arranged, it remained a turbid ocean of technicalities and absurdities in which its essentially sensible principles were totally submerged. This the "practical" lawyers of the time could not for the life of them see. They continued telling about English law being the perfection of human reason while the unfortunate litigant was raging over the delays, the expenses, and the pitfalls which made a lawsuit spell ruin.

The first awakening came with Blackstone and Bentham. Blackstone for a moment stirred the stagnancy of Oxford by his

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