Revenue-Settled Land-Land Values-Increment Duty-Provisional Valuation for Purposes of Duty-"Owner"-Duties of Trustees-Rights of Remainderman-Finance (1909-10) Act 1910 (10 Edw. 7, c. 8), ss. 26, 27, 39, 41. The Finance Act 1910 casts no duty upon the trustees of settled land to check the provisional valuations of the land which have been made by the commissioners for the purposes of duty and served upon the trustees as 66 owners in accordance with the Act. The trustees have a discretion in the matter, and the court will not order them to incur the expense except in cases where there are special circumstances. Decision of Neville, J. (106 L. T. Rep. 421) affirmed. [Re Knollys' Settlement; Sanders v. Haslam. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. June 22.Counsel: Peterson, K.C. and G. B. Hamilton; Butcher, K.C. and T. L. Wilkinson. Solicitors: Burnie and Co.; Lindsay, Greenfield, and Masons.] Trade Mark-Registration—“ Lactobacilline "-"Invented Word" -Word having no direct Reference to Character of Goods-User -Trade Marks Act 1905 (5 Edw. 7, c. 15), ss. 3, 9. In March 1910 applications were made, under sect. 9 of the Trade Marks Act 1905, by a French company carrying on business as manufacturers of drugs and chemical products, to register the word "Lactobacilline" in classes 3 and 42 as a trade mark in respect of a pharmaceutical preparation for human use, and also in respect of alimentary goods. The usual note appeared at the foot of each application, that the applicants did not claim the registration under the special provisions of par. 5 of sect. 9. The applications were opposed by the proprietors of certain stores on the grounds that the word was not an "invented word," and was a word having "direct reference to the character of the goods" indicating lactic acid bacilli; that the registration thereof would unduly hamper the opponents and others in connection with the sale of preparations containing lactic acid bacilli; and that in the alternative the word had such resemblance to the trade mark "Lacticine" used by the opponents in connection with preparations containing lactic acid bacilli as to be calculated to deceive. The applications came on to be heard before an official at the Patent Office acting for the Registrar of Trade Marks on the 14th June 1911. He decided that the registration ought to be allowed to proceed. The opponents appealed to the court, contending that the word had been used by the applicants and others as a word descriptive of the article itself. The applicants, however, adduced evidence to the effect that the word had been invented by themselves, and that it had always been understood by scientists and the public who used their preparation as referring to their preparation only and no other. In Dec. 1911 it was decided by Joyce, J. that the word, which came obviously from "lactobacillus," now a well-recognised word in the English language, had for several years been used to designate a preparation that anyone might manufacture; that it was doubtful whether there ever was enough invention in the word to bring it within the meaning of sect. 9 (3) of the Act of 1905; and that it was a word having a direct reference to the character of the preparation. The applicants appealed to the Court of Appeal. Held, that the applicants alone had used the word to describe their own preparation of lactic ferment; that the evidence showed that the word was an "invented word" within sect. 9 of the Act of 1905; and that the prior user of it by the applicants did not deprive it of that character. Appeal allowed. [Re Société Anonyme le Ferment Trade Mark Applications. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. June 17, 18, and 19.-Counsel: for the appellants, Walter, K.C. and J. Hunter Gray; for the respondents, Hughes, K.C. and Sebastian. Solicitors: for the appellants, Irvine, Borrowman, and Browne; for the respondents, McKenna and Co.] Will-Bequest of Business-Direction to Executors and Trustees to carry on the same-Power to employ one of them at a Salary as General Manager-Claim for Remuneration as against Creditors of insolvent Estate. A testator, by his will dated the 5th Oct. 1907, after appointing the defendants executors and trustees thereof and after bequeathing certain pecuniary legacies and annuities, gave his business and the premises where it was carried on to the defendants upon trust to carry on the same for such period as they might think fit, with full and uncontrolled discretion as to the management of the business, and he gave power to the defendants to employ one or more of them at a salary to manage the business as general manager, and he directed the defendants to divide the net profits arising from the business equally amongst his brothers and sisters; and, after directions as to certain specific parts of his estate and the realisation thereof and empowering the defendants to employ A. B. (who was one of their number) as the agent for managing the estate and to pay him such a sum for so acting as they might think fit, devised and bequeathed his residuary real and personal estate to the defendants upon the trusts therein-mentioned. The testator died in Oct. 1907. A. B., one of the defendants, was appointed to manage the testator's business. In Oct. 1908, in an action commenced by originating summons by one of the beneficiaries, an order was made for the administration of the testator's estate. In July 1909 an order was made for the sale of the business as a going concern, and the same was sold accordingly. The business having been disposed of, the defendants' further accounts were lodged in chambers and vouched, and the master's certificate was completed. By the minutes of the order on further consideration the defendants asked that the remuneration of A. B. and his expenses in carrying on the business, which items were submitted by the master to the court, should be allowed. It was anticipated that the testator's estate would prove to be insolvent. The creditors of the testator objected to the allowance of any sum in respect of the remuneration of A. B. until they had been paid, and then not without showing that his management had been beneficial to the estate. On the 16th Jan. 1912 it was decided by Eve, J that the defendants were not as against creditors entitled to the sum charged by the defendant A. B. as tioned in the master's certificate, or any part thereof, without prejudice to any question between any of the parties if the assets of the testator should ultimately prove to be sufficient for payment in full of his debts and liabilities. The defendants appealed, asking for a declaration that the defendants were entitled to be allowed in their accounts the sum charged by the defendant A. B.; or alternatively that an inquiry might be directed what was the proper amount to be allowed to the defendants for remuneration in respect of the carrying on and management of the testator's business by the defendant A. B. The defendants' contention was that the will expressly authorised the employment of A. B. as general manager of the business at a salary; that the business required a manager; and that, the amount paid to A. B. being a fair and reasonable sum to pay to a manager and such as would have had to be paid to a stranger, the creditors had not suffered by the appointment. Dowse v. Garton (64 L. T. Rep. 809; (1891) A. C. 190) was relied upon. men Held, that, having regard to the decision in Re White; Pennell v. Franklin (78 L. T. Rep. 770; (1898) 2 Ch. 217), the allowance asked for could not be made to the defendants as against creditors of the testator's estate. Appeal dismissed. [Re Salmen; Salmen v. Bernstein. Ct. of App.: CozensHardy, M.R., Farwell and Kennedy, L.JJ. June 24.Counsel for the appellants, Dighton Pollock and Beebee; for the respondents, P. Ogden Lawrence, K.C. and Stamp. Solicitors: for the appellants, Arthur E. Eves; for the respondents, Morton and Patterson.] HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Trust-Tenant for Life and Remaindermen-Leaseholds-Freeholds -Repairs-Liability of Corpus or Income for. By his will, dated the 2nd July 1900, the testator appointed W. T. S. and others executors and trustees, and devised and bequeathed his residuary real and personal estate to his trustees upon trust for sale and conversion and out of the proceeds to pay his debts, &c., and to stand possessed of the residue of such proceeds upon trust to pay the rents, dividends, and annual income thereof to his wife, the plaintiff R. S. during her life, and from and after her death for others in remainder. And the testator declared that it should be lawful for his trustees to postpone the sale and conversion of all or any part of his residuary estate for such time as they should in their absolute discretion think fit, and directed that the whole of the rents, profits, and annual income of his residuary estate, however the same might from time to time be represented, should be paid to his wife and no part applied to capital, and that no apportionment in respect of such rents, profits, dividends, and annual income should be made at the time of his decease, but the whole thereof should be paid to his wife. The testator's property at the time of his death in July 1900 consisted (inter alia) of real and leasehold weekly_properties which were retained by the trustees of the will. The trustee W. T. S. managed the said real and leasehold properties, and during the succeeding years charged and retained out of the rents of the property large sums for repairs. The plaintiff R. S. brought this action against the trustees, alleging (inter alia) that those sums were improperly charged out of income and should have been paid, if at all, out of capital, and in this behalf the plaintiff relied on Re Courtier (55 L. T. Rep. 574; 34 Ch. Div. 136), Re Hotchkys (55 L. T. Rep. 110; 32 Ch. Div. 408). and Re Horne (92 L. T. Rep. 263; (1905) 1 Ch. 76). For the defendants, Lewin on Trusts, p. 266; Re Gjers (80 L. T. Rep. 689; (1899) 2 Ch. 54), and Eccles v. Mills (78 L. T. Rep. 206; (1898) A. C. 369) were cited. Held, that what was necessary to put the leasehold property into proper repair at the death of the testator ought to be paid out of corpus, and that the income ought to bear the cost of keeping the property in repair after that date, with reference to the covenants in the leases. All the repairs to the freeholds must be borne by the corpus. [Re Sutton (deceased); Sut'on v. Sutton. Ch. Div.: Neville, J. June 13 and 17.-Counsel: Jenkins, K.C. and R. Roope Reeve; Peterson, K.C. and MacSwinney; Poyser. Solicitors: Torr and Co.; Edell and Co.; W. W. Young, Son, and Ward.] Will-Construction-Gift of Realty-"Die without leaving a Male Heir"-Failure of Heirs at Time of Death-Estate in fee simple-Wills Act (1 Vict. c. 26), s. 29. A testator by his will devised and bequeathed "the manor of M. with the appurtenances thereof and also all other my freehold and leasehold messuages or dwelling-houses or lands of any other holding upon the trusts hereinafter declared, namely, upon trust to pay the rents, produce, and annual income arising therefrom unto my nephew R. until he shall assign, charge, or otherwise dispose of the same or some part thereof or become bankrupt or do something whereby the said annual income or some part thereof would become payable to or vested in some other person, which of the said events shall first happen, and, if the trusts herein before declared shall determine in the lifetime of R., to accumulate at compound interest for the benefit of the male heir of his body till he attain the age of twenty-one years, and should he die without leaving a male heir then I direct my trustees to apply the annual income to my nephews W., F., and H. and the respective male heirs of their bodies successively in tail," with gifts over in the event of W., F., and H. not leaving male heirs. The testator died on the 10th Oct. 1906 possessed of no leasehold property. This summons was to determine (inter alia) to what estate or interest in the real estate devised by the will R. was entitled For the plaintiff, R., it was argued that he was entitled to an estate in fee simple, or alternatively an estate tail, determinable upon assignment or bankruptcy. For the defendants, other parties interested under the will, it was contended that the plaintiff took no more than a determinable life interest. Held, that (without prejudice to any claim of the person who might be male heir or male heir of the body of R. at the time of his death) R. was entitled to an equitable estate in fee simple, determinable in the event of his assigning, charging, or becoming bankrupt, and if he should die without so assigning, charging, or becoming bankrupt, an estate in fee simple absolute, subject to the executory limitation over to W., F., and H. in the event of R. dying without leaving a male heir of his body at the time of his death. [Re Walter Leach; Leach v. Leach. Ch. Div.: Joyce, J. April 23 and May 24.-Counsel: J. G. Wood; Owen Thompson; E. F. Spence; Popham. Solicitors: Paynter, Newman, and Co.; Morrison and Co.] KING'S BENCH DIVISION. County Court-Practice-Costs-Taxation-Claim and Counterclaim-Taxation where Plaintiff succeeds on Claim and Defendant on Counter-claim-County Court Rules, Order LIII., r. 16 (3). Appeal from the decision of the learned deputy judge sitting at the City of London Court. An action was brought by the plaintiff in the City of London Court claiming arrears of salary from the defendants, who contested the plaintiff's claim and also counter-claimed for the return of certain articles from the plaintiff. The learned judge gave judgment for the plaintiff on the claim for £25 and costs, and for the defendants on the counter-claim for £26 and costs. The registrar taxed the plaintiff's bill of costs on scale B and allowed a fee of £3 3s. to the plaintiff's counsel. He then taxed the defendants' bill o costs and allowed the defendants' counsel a fee of the same amount in respect of the counter-claim. Order LIII., r. 16, of the County Court Rules provides that "Where a counter-claim is raised and tried, unless the judge otherwise orders, the scale upon which the costs of the parties are to be taxed shall be determined as follows: (3) If both parties are successful, by the amounts which they recover on their respective claims. The plaintiff appealed from the taxation of the registrar on the ground that, having allowed the plaintiff's counsel a fee of three guineas upon the claim, he had exhausted the amount for counsel's fees which was provided for under the scale applicable, and therefore he was not entitled to allow any fee to the defendants' counsel in respect of the counter-claim. The deputy judge affirmed the decision of the registrar and disallowed the plaintiff's objection. Held, that, in taxing the costs, the claim and the counterclaim must be treated as separate actions in respect of each of which a total fee of three guineas was payable to counsel, and that in each case the registrar must determine what proportion of that sum was referable to the claim and counter-claim respectively and allow to the successful plaintiff the amount to which he was entitled for proving his claim, but nothing in respect of the counter-claim, and to the successful defendant the amount referable to his proof of his counter-claim, but nothing in respect of his unsuccessful resistance of the plaintiff's claim. [Fox v. Central Silkstone Collieries Limited. K. B. Div.: Ridley and Bray, JJ. June 19.-Counsel: Coutts-Trotter ; Neilson. Solicitors; Corbin, Greener, and Cook, for Hugh Bury, Barnsley; Pritchard and Sons, for Collins, Robinson, Driffields, and Kusel, Liverpool.] Master and Servant-Liability of Master for Act of ServantScope of Employment-Injury to Person invited by Servant to enter Master's Cart. In Appeal from the decision of His Honour Judge Hamilton sitting at the Chorley County Court. The defendant was the owner of a milk round, and employed H. to drive a milk-float and also a boy to help deliver the milk. During the course of a round, the boy fell out of the float and was rendered unconscious. The plaintiff, seeing the accident, went to the boy's assistance. She said to H.: Shall I help you to take him home"? He replied: "You can, if you will. Get in." The plaintiff got into the float and was bending down to put the boy's head to rest on her arm when the float started and the plaintiff was thrown out and injured. an action by the plaintiff against the defendant to recover damages for the injury sustained, the learned County Court judge held that in the circumstances there was an obligation upon H. to secure assistance on behalf of his master; that the plaintiff was entitled to care on the part of H.; and that, there having been a breach of the duty owed, the defendant was liable. He gave judgment for the plaintiff for £30. defendant appealed, and it was contended on his behalf that there was no implied authority on the part of his servant to obtain assistance in case of an accident, and that, unless express authority to do so had been given, the defendant owed no duty to the plaintiff. The Held, that the decision of the learned judge was wrong, and that the defendant's servant by inviting the plaintiff into the cart could not impose upon the defendant an obligation to exercise care in regard to her, the breach of which entitled her to damages. [Houghton v. Pilkington. K. B. Div.: Bray and Bankes, JJ. Solicitors: June 21.-Counsel: Eastham; Compton Smith. Barlow, Barlow, and Lyde, for J. Chapman and Co, Manchester; E. C. Rawlings and Butt, for J. H. Neville, Chorley.] LAW LIBRARY. Company Law and Precedents. By ARTHUR STIEBEL. Butterworth and Co. ALTHOUGH Mr. Stiebel's book is very bulky, extending as it does to over 1500 pages, it is undoubtedly convenient to have the statute and case law relating to companies, and such company forms and precedents as are likely to be of service in ordinary practice, together with the Assurance Companies Act 1909, in one volume. Cases decided in the Hilary Term 1912 and the more important of those decided in the Easter Term 1912 have been incorporated in the text. For convenience of reference, forms have, throughout the book, been placed immediately after the part of the text dealing with the subject-matter to which they relate, and references to the forms will also be found in the text. Mr. Stiebel-who has obtained both expert assistance and advice as to the practice that prevails in the various courts and departments concerned with companies-is to be congratulated upon turning out such a useful and compendious work, and we only hope that it will meet with the success that his labours deserve. Encyclopedia of the Laws of England; Supplement to the end Sweet and of 1911. Edited by MAX A. ROBERTSON. Maxwell Limited; William Green and Sons. THIS, the third annual supplement to the second edition, is a temporary volume for use during the current year, in which the arrangement of the main work has been followed. The system adopted allows quick and easy reference to be made. A demand having been made by subscribers for an index, this has now been added, while under "Will we find Precedents of Wills which were omitted from vol. 14 owing to lack of space. It forms also a complete digest of the statute and case law during the period covered. A Short History of English Law. By EDWARD JENKS. Methuen and Co. Limited. THIS Volume attempts to cover the whole field of English legal history from the earliest times to the present day, although it only touches lightly on that side of the subject which has already been adequately treated, as, for instance, the origin and development of the courts, and the relations of the State towards its subjects. From the end of the sixteenth century Mr. Jenks has, as he expresses it, "sailed over an almost unchartered sea," and presents, therefore, work which has entailed much original research. Besides an index there is a full synopsis of chapters, and, although extending to nearly 400 pages, the book is light in weight and well printed a matter of no small importance to readers. The name of the author is sufficient guarantee of accuracy and, so far as is possible in a work of this size, of completeness. Privy Council Practice. By NORMAN BENTWICH. Sweet and Maxwell Limited. THE full title of Mr. Bentwich's book describes its scope. It is: The Practice of the Privy Council in Judicial Matters in Appeals from Courts of Civil, Criminal, and Admiralty Jurisdiction, and in Appeals from Ecclesiastical and Prize Courts, with the Statutes, Rules, and Forms of Procedure. The work is founded upon Safford and Wheeler's Practice of the Privy Council in Judicial Matters, since the publication of which in 1901 the practice dealt with has been greatly simplified. Certain rules have been standardised, the rules of the Judicial Committee itself consolidated, jurisdiction in some cases transferred to other courts, and other modifications instituted, rendering it possible to reduce by more than half the earlier bulky work. The book is divided into three parts, Part 1 dealing with rules of appeal from the colonies, &c., Part 2 treating of the practice before the Privy Council, and Part 3 containing the practice in Admiralty, Prize, and Ecclesiastical appeals. Great care has evidently been expended in the preparation of the work, which is eminently practical. We think, however, that its value would have been further advanced had references to all contemporary reports been added to the table of cases. War and the Private Citizen. By A. PEARCE HIGGINS. P. S. King and Son. MR. ARTHUR COHEN, K.C., has written an appreciative introductory note to this interesting book, which consists of a series of studies in international law. Mr. Higgins presents his subject in five chapters, dealing with (1) The laws of war in relation to the private citizen; (2) Hospital ships and the carriage of passengers and crews of destroyed prizes; (3) Newspaper correspondents in naval warfare; (4) The conversion of merchant ships into warships; and (5) The opening by belligerents to neutrals of closed trade. Some of the matter has appeared in print before, chapter 2 in the Law Quarterly Review, and chapter 3 in Die Zeitschrift für Völkerrecht und Bundesstaatsrecht, but their republication together with the other articles is very welcome, and they show the great possibilities of harm which war may occasion to the civilian population. The Moneylenders Acts 1900-1911. By CHARLES L. COLLARD' Butterworth and Co. THIS volume with its verbatim reports of the authoritative cases and appendices of statutes, rules, and precedents of pleading presents a complete review of the law and practice under the Moneylenders Acts. After an introduction in which equitable relief is discussed, both statutes are given in an annotated form with clear and concise notes, followed by a discussion of the practice in these cases. As the author points out, the 1911 Act has entirely altered the law on the subject of the position of assignees of moneylenders' securities, and its effect is duly dealt with. It is useful to have a collection of the cases in a single volume, citation being thus simplified. The National Insurance Act 1911. By A. S. PRINGLE. William Green and Sons, Edinburgh. INNUMERABLE publications are being issued to explain this complicated Act and to assist employers and employees to ascertain their obligations. Mr. Pringle, however, limits himself to the proper functions of a law book, and refrains from expressions of opinion on questions of policy and avoids prophecy as to the actions of the commissioners or committees. He has, however, endeavoured to avoid legal technicalities for the sake of laymen to whom the book will certainly be useful. The value of the work is greatly enhanced by an exhaustive index. We have received from Messrs. Butterworth and Co. vol. 5 of the Quarterly Advance Sheets (Part 2-1912) of Butterworth's Workmen's Compensation Cases, edited by Mr. Douglas Knocker, containing all cases in which judgment was given during March and April. Part 2 of Reports of Cases under the Workmen's Compensation Acts, edited by Mr. William E. Gordon, the new series recently commenced by Messrs. Stevens and Sons Limited and Messrs. Sweet and Maxwell Limited, has reached us. Scottish and Irish appeals are included. NEW EDITIONS. Vol. 3 of the sixth edition of Chitty's Statutes of Practical Utility, by Mr. W. H. Aggs, has just been issued by Messrs. Sweet and Maxwell Limited and Messrs. Stevens and Sons Limited, and deals with the subjects "Copyright" to "Customs." It has been a little delayed in publication, but this delay has been amply justified, for it has enabled the editor to include the Copyright Act 1911 and the Perjury Act 1911. Half the volume is occupied with the subject "Criminal Law," which includes the numerous statutes passed since the last edition. This section has been arranged under sub-headings, and, in order to facilitate reference, a complete table of all the Acts, arranged chronologically, has been placed at the beginning. "Crown Office Crown Office" is a new title, under which will be found the rules of 1906, the title 'Certiorari," under which in the last edition some of the rules of 1886 were printed, having been dropped. Under 'Customs" those parts of recent Revenue and Finance Acts which affect the Customs Consolidation Act of 1876 or impose new customs duties have been added. The cases cited in the volume are, as a general rule, brought down to the end of March 1912. 66 66 The sixth edition, just published by Butterworth and Co., of that excellent book, Hunt's Law of Boundaries, Walls, and Fences, is more than merely a new edition. Mr. R. G. Nicholson Combe has revised and substantially rewritten the work. The difficulties the editor has had to encounter will be appreciated by those who know something of the subject, for there is no narrow code or branch of law peculiar to the subject, inasmuch as the law of boundaries and fences is part of the general law of land. Special attention has been paid to the development of a useful feature of the original book-namely, the collection of the numerous presumptions of law which exist with regard to the ownership of highways, rivers, and fences, and with regard to boundaries generally. There is a new chapter on the Law of Support, and the introduction and several other chapters have been rewritten, including that on the boundaries of registered land. Mr. Combe's revision has been thorough, and the present edition will well maintain the high reputation of its predecessors. It is fifty-four years since Professor Westlake first published his well-known Treatise on Private International Law, and now Messrs. Sweet and Maxwell Limited have brought out a fifth edition, the learned author having been again assisted in his work by Mr. A. F. Topham. As our readers are aware, the book deals with private international law with principal reference to its practice in England, and although no decisions of unusual importance have been given since 1905, when the fourth edition appeared, all those that have any bearing on the subject have been duly incorporated, as, for instance, Ogden v. Ogden, as to the validity of a marriage, and Raulin v. Fischer, as to enforcing foreign judgments. We have received Parts 8, 9, and 10 of Vol. 7 of Criminal Appeal Cases, edited by Mr. Herman Cohen, and published by Messrs. Stevens and Haynes, containing cases from the 4th March to the 23rd May. Syed Ameer Ali has brought out through the University of London Press an essay, published in book form, on The Legal Position of Women in Islam. If Western civilisation regards the social position of its women as superior to that of the sex under Mohammedanism, the same cannot be said of their position in the eyes of the law. Mr. Ali deals with the status of a Mussulman woman as a daughter, as a wife, as a mother, and as a member of the society to which she belongs. Sheffield, Thursday (By at 2) and Friday, at 10 Shoreditch, Tuesday and Thursday Stratford-on-Avon, Monday, at 10 Sudbury, Monday Sunderland, Thursday (R. By) No return from Circuit 3. * Other sittings are specially fixed if necessary. CRIMINAL LAW AND BOROUGH QUARTER SESSIONS. Tuesday, Abingdon, Thursday, July 18 Bury St. Edmunds, Monday, July 8 Dudley, Monday, July 1, at 10.30 Exeter, Tuesday, July 2 Great Yarmouth, Monday, July 15, at 10.30 Grimsby, Tuesday, July 9 Circumstances Affecting Sentence. A RECENT decision of the Court of Criminal Appeal has raised again the question how far the court, in sentencing a prisoner upon conviction of an offence, ought to take into consideration the prevalence of offences of a similar nature within the jurisdiction of the court. The question was raised, it will be remembered, in an acute form during the discussion which took place some few years ago in connection with a conviction for cattle-maiming at the Staffordshire Quarter Sessions, in which case the chairman of the Bench in his charge to the jury, while commenting upon the facts of the case which was being tried, had referred to the frequency of crimes of a like nature in the district where the offence was committed with which the prisoner was charged. The practice of making such a reference was severely criticised as tending to influence the minds and, consequently, the verdict of the jury in relation to the evidence before them. Such a consideration does not, of course, apply when the judge, in sentencing a prisoner after verdict, takes into consideration the fact that crimes of a similar nature are of frequent occurrence in the district. The Court of Criminal Appeal has definitely enunciated the proposition that the prevalence of a particular form of crime in a particular neighbourhood and the necessity for severe measures for its repression are matters properly to be taken into consideration by a judge in sentencing a prisoner. This view must present itself as obviously a logical one to every person who believes that the object of punishment is to deter and prevent the commission of crime. Our criminal law has always left the measure of punishment, within certain limits (except, of course, in cases where the death sentence is the only legal sentence), to the discretion of the judge or other person who presides over the tribunal by which the prisoner is tried. In order to exercise this discretion, it has therefore been customary to take into consideration the career and the antecedents of the prisoner-to admit evidence both in mitigation and in aggravation of the sentence. The practice on this point has never been very definitely settled--that is to say, it has never been exhaustively argued or decided as to what matters the judge may or may not take into consideration. Evidence in aid of determining the appropriate punishment may in some cases be taken upon affidavit, although it is usual to take it vivâ voce : (Rex v. Cox, 4 C. & P. 540). In cases of felony the Court of King's Bench held that an affidavit was inadmissible to prove circumstances in aggravation of sentence: (Rex v. Ellis, 6 B. & C. 148). Such evidence must be adduced before the judgment of the court has been entered on the record, for after that has been done the court cannot alter its sentence or judgment. THE CRIMINAL EVIDENCE ACT 1898. SINCE and even before the establishment of the Court of Criminal Appeal the Criminal Evidence Act 1898 has naturally been the subject of many decisions. These have mostly had relation to technical points arising on the construction of its different sections, but the Act itself has now been in force for a period of years sufficient to justify a short consideration of its general effect. Introduced and passed as an act of tardy justice to accused persons, it is extremely doubtful if on the whole it has been for their benefit, although the increased probability of conviction of guilty prisoners which experience would seem to attribute to it is a matter of possible congratulation from the point of view of the State. The reasons for this increased probability are in practice of some interest, and possibly were not or could not have been present to the minds of those who framed the Act. In consonance with the great principles which call on the prosecution to prove a case beyond reasonable doubt and do not call compulsorily for an explanation from the accused, the Act made the evidence of the prisoner voluntary and forbade comment on his absence from the witness-box by the prosecution. For a year or two this was a real benefit, although it cut away the ancient plea under which counsel for the defence reminded the jury "that one person alone can give a truthful account of what has taken place and his mouth is closed." Given the latitude allowed to the defence in suggestion and argument on the facts, this plea was remarkably useful, although no statistics do or could exist as to the numbers of guilty men and women who were acquitted thereunder. Another consideration has now practically nullified the protection which the Act sought to afford. Since 1898, jurymen in large numbers have been summoned to try criminal cases. Some of them have been summoned twice or even thrice, and to them, if not to all the world, it is common knowledge that a prisoner can, if he so chooses, give evidence. It is probably within the experience of most members of the Bar practising in criminal courts to have heard a juryman at the close of a case ask why the prisoner did not go into the witness-box, and to have sympathised with the judge or chairman in the momentary difficulty of giving an answer which would not wholly remove any chance of acquittal. These are matters which are not generally present to the mind of the undefended prisoner unless he be one who from many previous trials has learnt a bitter experience. In this connection occurs a criticism of the Act in that no form of caution is provided to be administered to the prisoner when the somewhat momentous choice of himself giving evidence or not is to be made. It has been left for the Court of Criminal Appeal to decide that he ought to be distinctly told that he has a right to give evidence. Experience again tells us that this telling is seldom distinct in the sense of being comprehensible by an uneducated prisoner; that the election to which he is entitled is seldom clearly explained to him; that sometimes he is warned of possible crossexamination by the prosecution and sometimes not; while it must be admitted that the mention of cross-examination without 66 further explanation conveys little or nothing to most prisoners. This want of uniformity is only natural where no specific caution is provided, but its possibility to work injustice is quite sufficiently shown to justify the introduction of some form analogous to those used in the Summary Jurisdiction Acts, which would, in as simple language as possible, explain his position to the prisoner. Let us assume that the prisoner has, without in the least realising the consequences, elected to give evidence on his own behalf. Subject to certain protections afforded by the Act, he is liable to cross-examination. Whether such cross-examination be fairly conducted or not, the average prisoner seldom makes a good impression on the jury during this process. The word average" is advisedly used since it requires more than average ability in a prisoner, placed as he is in a position of extreme anxiety, to face even a moderately skilful cross-examination. In fact, the deplorable but not uncommon practice of putting the evidence of the different witnesses for the prosecution to the prisoner, obtaining doubtful admissions from him that they are liars, and then asking him whether he can suggest any motive for their making untruthful statements, usually reduces him to silence or evokes an exasperated attack charging the prosecution, and particularly the police, with conspiracy. Quite apart from any question as to whether such answers involve imputations on the prosecution, it is from experience obvious that his attitude often unnecessarily discredits his case or at times assists the prosecution to complete their case. On the question of cross-examination to character the Act sought to be fair, but in one or two respects, which have not seldom been exemplified in actual cases, it has had an unfair result. A hypothetical but not improbable case will serve to illustrate one of these. A prisoner is of indifferent character with some previous convictions recorded against him which are not for offences of specifically the same nature as that with which he is charged. One of the witnesses for the prosecution is a person of indifferent character without actual convictions, but is so important a witness that it is vital for the defence to test his credibility. Cross-examination involving an attack on the character of this witness will naturally open a similar attack on the prisoner. Scarcely a jury exists which would not be prejudiced by details of the prisoner's previous convictions or would not allow the same to turn the scale in a case of doubt, and careful directions as to irrelevance and cautions as to the weight of such disclosures would be powerless to avoid this effect. Some may object that it is only fair on a question of credibility that this rough balance should be struck, but in such a case the scale is against the prisoner. In fact, some discretion in the matter might have been left to the judge or chairman. One great blot on this part of the Act exists, which it is almost impossible to explain away. In the case of a prisoner of indifferent character, the witnesses for the prosecution are protected from attack in the sense that except for a very good reason it is bad policy for the defence to make imputations against their character. No similar protection is afforded to witnesses for the defence, who after the close of the prosecution, when retaliation is impossible, may be attacked mercilessly. It sometimes happens that the past history of witnesses on both sides will not bear too close a scrutiny, and in such a case the prisoner or his counsel is put in the dilemma of deciding whether his character shall or shall not be put in issue, with the knowledge that, whichever course is decided upon, his own witnesses will probably be discredited in the eyes of the jury. Jurymen are only human, and few of them can put away the impression that previous convictions, even for totally different offences, make for the probability that the prisoner is guilty of the offence charged. The foregoing remarks and criticisms have omitted one consideration of importance. The possibility of a really innocent man being able to give evidence on his own behalf is undoubtedly, notwithstanding the dangers of cross-examination, of real benefit to him. It is also a consolation to think that of the total number of prisoners committed for trial a very small percentage are innocent. E. H. T. A. The scene at the assizes in Monmouth on the 22nd inst., which Mr. Justice Phillimore, the presiding judge, declared to be without a precedent in his experience, where a prisoner on being |