Barbados.-An island in the West Indies, which has been a British possession since the seventeenth century. It was at first under proprietary government; in 1662 it was annexed to the Crown; in 1885 it was separated from the Windward Islands, and became a distinct government (Stat. R. & O. Rev. 1904, vol. i., Barbados, p. 1). The laws of the island are English in their origin (1st Report, West Indian Commissioners, p. 5). The legislature consists of the Governor, a Legislative Council appointed by the Crown, and a Legislative Assembly elected under a local Act passed in 1891. The chief judicial authorities are the Chief Justice and the judges of the Assistant Court of Appeals. Barbados is connected for judicial purposes with Grenada, St. Vincent, Trinidad, and Tobago and St. Lucia. See WINDWARD ISLANDS. As to conditions of appeal to Privy Council, see PRIVY COUNCIL.

Barbed Wire.-An occupier of land [may use barbed wire fencing on his own land, and he will not be liable to anyone who is injured thereby unless certain conditions obtain with respect to adjoining lands. Clearly he is not liable to a mere trespasser when the fence is entirely on his own land. His liability to an adjoining occupier depends mainly on his liability for fencing; and if in discharge of such obligation he puts up a dangerous fence, he will be liable for all the consequences (even though the fence is on his own land) on the principle embodied in the well-known maxim, Sic utere tuo ut alienum non laedas (cf. Bennett v. Blackmore, 1892, 90 L. T. Newsp. 395)]. In a County Court case, where the plaintiff had acquiesced in the defendant placing a fence on the plaintiff's land to protect a young hedge, the defendant was held liable for injuries caused to the plaintiff's mare by the barbed wire; the learned judge declining to draw the inference that the plaintiff had undertaken either not to use the field for its ordinary and proper purpose, or to do so at his own peril (Shipton v. Lucas, 1892, L. T. Newsp. 297). [See also M'Quillan v. Crommelin Iron Ore Company, 26 Ir. L. . Rep. 15, where a railway company which had erected a barbed-wire fence to guard the line were held liable for damage done to sheep pastured in an adjoining field.]

A barbed-wire fence adjoining a public footpath or other highway may be so dangerous as to be a public nuisance, and indictable as such. Any member of the public who sustains particular damage without negligence on his part has a right of action. (As to evidence of negligence, when the nuisance is proved, see Fenna v. Clare, [1895] 1 Q. B. 199.) Thus, where a sudden gust of wind blew the plaintiff's coat against a barbed fence adjoining a public footpath, the owner of the fence was held liable, the County Court judge having found as a fact that the fence was dangerous and a nuisance (Stewart v. Wright, 1893, 9 T. L. R. 480). It is possible, though it has not been decided, that a person erecting such a fence may be liable to summary proceedings under sec. 72 of the Highway Act, 1835, for wilfully obstructing the free passage of the footpath or highway (see Collen v. Ellis, 1893, 32 L. R. Ir. 491).

The Barbed Wire Act, 1893, 56 & 57 Vict. c. 32, was passed for the purpose of affording a summary procedure for preventing the use for fences of barbed wire which is a nuisance to a highway-that is to say, of "any wire with spikes or jagged projections jagged projections" "which may probably be injurious to persons or animals lawfully using such highway" (s. 2). The power of initiating proceedings for this purpose is intrusted

VOL. II.

8

generally to the local authority, which is defined to mean (as regards England and Wales) "any county council, any urban sanitary authority, any sanitary authority in London, any highway board, and any other local authorities existing, or that may be hereafter created by Parliament, having control over highways." In rural districts the powers of highway boards and of surveyors of highways have since been transferred generally to the district council by the Local Government Act, 1894. The Act only applies to highways, but this term includes public footpaths and bridle-paths.

The method of procedure is laid down by sec. 3 of the Act: "(1) Where there is on any land adjoining a highway within the county or district of a local authority a fence made with barbed wire, or in or on which barbed wire has been placed, and the barbed wire is a nuisance to such highway, it shall be lawful for the local authority to serve notice in writing upon the occupier of such land, requiring him within a time therein stated (not to be less than one month, nor more than six months, after the date of the notice) to abate such nuisance. (2) If on the expiration of the time stated in the notice the occupier shall have failed to comply therewith, it shall be lawful for the local authority to apply to a Court of summary jurisdiction, and such Court, if satisfied that the said barbed wire is a nuisance to such highway, may by summary order direct the occupier to abate such nuisance; and on his failure to comply with such order within a reasonable time, the local authority may do whatever may be necessary in execution of the order, and recover in a summary manner the expenses incurred in connection therewith." The only appeal is on points of law by case stated to the High Court. Expenses incurred by a local authority in the execution of the Act are to be defrayed in like manner as the expenses of the local authority incurred in respect of any highways (s. 5).

Where the local authority are the occupiers of the land, proceedings under the Act may be taken by any ratepayer within their district, and a notice to the local authority to abate the nuisance shall be deemed to be properly served if it is served upon the clerk of the local authority, and any ratepayer taking proceedings may do all acts and things which a local authority is empowered to do (s. 4).

[See Lumley, Public Health, 1902, vol. ii. p. 1393. The cases up to 1892 are also summarised in an article in The Justice of the Peace, vol. lvi. p. 163. An article in the Law Times, vol. xcv. p. 419, collects some notes of cases in the American reports.]

Bare Trustee.-The meaning of this expression is not on the decided cases clearly defined. The expression, besides being in current use, occurs in several Acts of Parliament. By the Fines and Recoveries Act (3 & 4 Will. IV. c. 74, s. 31) it is provided that where, under a settlement made before the passing of the Act, the person who under the old law would have been the proper person to make the tenant to the præcipe shall be a bare trustee, such trustee, during the continuance of the estate conferring on him the right to make the tenant to the præcipe, shall be the protector of the settlement. A bare trustee cannot be the protector of a settlement made since the Act. (See Lewin, 11th ed., p. 451; Buttonshaw v. Martin, 1858, John. 89; In re Dudson, 1878, 8 Ch. D. 628; In re Ainslie, 1884, 51 L. T. 780.) A husband is not a bare trustee under the same Act of lands belonging to his wife for her separate use. Keer v. Brown, 1859, 28 L. J. Ch. 477.

Before the general provision of the Conveyancing Act of 1881, that trust estates shall vest in the personal representative of a sole trustee at the latter's death (s. 30), the Vendor and Purchaser Act, 1874 (s. 5) enacted a rule similar, but limited to hereditaments of which a bare trustee died seised in fee-simple. Under this it was held that a bare trustee is a trustee to whose office no duties were originally attached, or who, though such duties were originally attached to his office, would at the request of his cestui-que trust be compellable in equity to convey the estate to them, or according to their direction (per Hall, V.-C., in Christie v. Ovington, 1875, 1 Ch. D. 279, followed by Stirling, J., In re Cunningham & Frayling, [1891] 2 Ch. 567). The expression bare or naked trustee was applied by Jessel, M.R., to a trustee without beneficial interest (Lysaght v. Edwards, 1876, 45 L. J. Ch. 559); a dictum of the same learned judge (in a case where the actual decision was that an unpaid vendor is not a bare trustee for the purchaser in possession), that a trustee without beneficial interest is a bare trustee within the meaning of the Act, whether he has active duties or not (Morgan v. Swansea Urban Sanitary Authority, 1878, 9 Ch. D. 582), has not been followed (see Tendring Hundr. v. Jones, [1903] 2 Ch. p. 622).

When any hereditament is vested in a married woman as a bare trustee, she may convey or surrender it as if she were a feme sole (although it is not her separate estate) (Trustee Act, 1893, s. 16, replacing Vendor and Purchaser Act, 1874, s. 6). The expression should, apparently, receive the same construction here as in the preceding section of the Vendor and Purchaser Act (In re Howgate, [1902] 1 Ch. 451). In In re Docura, 1885, 29 Ch. D. 693, Bacon, V.-C., held that a married woman who was a trustee for sale was, after an order for sale had been made in an administration action, a bare trustee.

Prior to the Intestates Estates Act, 1884, a trustee might from want of right in any other person have become entitled to realty vested in him. But now, see ESCHEAT.

Bargain and Sale.-A bargain and sale at the common law was a contract for the sale, whether of goods and chattels or of any estate or interest in lands, completed by payment of the agreed purchase money. By common usage the phrase is restricted to refer to bargains and sales of estates or interests in lands [though it also applies to chattels (see sec. 62, Sale of Goods Act, 1893)]. At the common law a contract for the sale of lands stood upon the same footing as any other contract, and did not require to be expressed in writing. Therefore a bare parol contract for such sale, when completed by payment of the purchase money, took effect as a bargain and sale at the common law. The effect of the transaction was to raise a use in favour of the bargainee, while the seisin, or other legal estate, remained vested in the bargainor. We may adapt to the case the language of the present day by saying that the bargainor became a trustee for the bargainee, to the extent of the estate or interest comprised in the completed contract. Thus the law stood until the enactment of the Statute of Uses (27 Hen. VIII. c. 10, s. 1).

Subsequently to the enactment of that statute any bargainor, who had an estate of freehold, became seised within the intent of the statute, to the use of the bargainee, for the estate or interest, whether freehold or not, comprised in the bargain and sale. It followed that such estate or interest was executed by the statute in the bargainee, who thereupon became seised, if the estate which he had in use amounted to a freehold,

and was adjudged in possession, without actual entry, if such estate amounted only to a chattel interest.

As this statute contained nothing to invalidate a parol contract for the sale of lands, it became possible, by a parol contract for sale followed by payment of the purchase money, to convey to a purchaser an estate of inheritance in lands. This secret mode of conveyance being opposed to the general policy of the law, which strongly favoured the open notoriety of such transactions, a remedy was applied in the same session of Parliament by the enactment of the statute 27 Hen. VIII. c. 16, commonly called the Statute of Inrolments, which enacted that from the 31st July 1536 no manors, lands, tenements, or other hereditaments should pass from one to another, whereby an estate of inheritance or freehold should take effect in any person, or any use thereof be made, by reason only of any bargain and sale thereof, except the same bargain and sale should be made by writing, indented, sealed and enrolled as therein mentioned; such enrolment to be within six months after the date of the writing. Here "months" means lunar months, and the day of the date is not included in the computation (2 Inst. 674).

The prescribed enrolment is either (1) in one of the Superior Courts at Westminster; or (2) before the Custos rotulorum (q.v.) and two justices and the clerk of the peace of the county within which the lands are situated; or (3) before two at least of the last-mentioned persons, the clerk of the peace being one. The statute does not apply to lands within cities and boroughs where the mayors or other officers have authority to enrol deeds or writings. Upon being enrolled in due time, the deed takes effect from the date of its execution.

The statute did not render enrolment necessary to the validity of bargains and sales of any interest less than a freehold. Upon this was founded the common assurance usually styled a lease and release [see LEASE AND RELEASE], being composed of a bargain and sale for a year, made for a nominal money consideration, usually ten shillings, which was executed by the statute without entry, followed by a release of the reversion, which took effect at the common law.

A bargain and sale, duly enrolled, is at this day a valid assurance (q.v.), but it is seldom used in practice. It is open to the objection that, as the bargainee comes in by a use, no further use can be limited upon the seisin acquired by him; such further use being a "use upon a use,' and taking effect only as a trust. For this reason it is not adapted either to the limitation of successive legal estates or to the creation of powers.

The last observation is not applicable to assurances which, though made in the form of a bargain and sale, do not take effect by raising a use to be executed by the statute; such as bargains and sales by executors having a common-law power of sale, as distinguished from a power to appoint to uses, or executed under the authority of any Act. of Parliament specially authorising such conveyance (1 Prest. Conv. 191; 2 ibid. 483).

[Bargain and sale is the appropriate method of conveyance of copyholds by executors who are directed by the will to sell them (Holder d. Sulyard v. Preston, 1769, 2 Wils. 400), and is also appropriately used by a freeholder in a mortgage of a term of years (Davids. Conc. Prec., 18th ed., 273n.).]

Bargains and sales may now be enrolled in the enrolment department of the central office of the Supreme Court of Judicature (R. S. C. 1883, Order 61, r. 9).

As to bargains and sales of lands in the counties palatine of Lancaster, Chester and the Bishopric of Durham, see 5 Eliz. c. 26. As to lands in the West Riding of the county of York, see 6 Anne, c. 20, usually cited as 5 & 6 Anne, c. 18. As to lands in the East Riding and town and county of the town of Kingston-upon-Hull, see 6 Anne, c. 62, s. 16, usually cited as 6 Anne, c. 35, s. 16. As to lands in the North Riding, see 8 Geo. II. c. 6, s. 21. The three last-mentioned enactments have been repealed by the Yorkshire Registries Act, 1884.

The following is a precedent of a Bargain and Sale of Copyhold Land by the Testamentary Donees of a Power :

19

THIS INDENTURE made the

in the county of

day of

BETWEEN [vendors] of &c. of the one part and [purchaser] of &c. of the other part WHEREAS at a customary Court holden for the manor of on the day of [testator] was admitted tenant of the hereditaments hereby conveyed To hold the same unto the said [testator] his heirs and assigns by copy of Court roll at the will of the lord according to the custom of the said manor AND WHEREAS the said [testator] duly made and executed his will dated the and thereby appointed the said [vendors] executors and trustees thereof and directed them to sell and dispose of all his copy hold messuages lands and hereditaments whatsoever AND WHEREAS the said [testator] died on the day of without having revoked

day of

or altered his said will and the same was on the day of following proved in the Principal Registry of the Probate Division of His Majesty's High Court of Justice AND WHEREAS the said [vendors] have agreed with the said [purchaser] for the sale to him of the said hereditaments to which the said [testator] deceased was admitted as aforesaid in fee-simple in possession free from all incumbrances at the price of £ NOW THIS INDENTURE WITNESSETH that in consideration of the said sum of £ now paid to the said [vendors] by the said [purchaser] of which sum they the said [vendors] hereby acknowledge the receipt and the said [vendors] in pursuance of the direction and authority for this purpose contained in the hereinbefore recited will and of all other powers and authorities enabling them in this behalf hereby bargain sell appoint and as trustees convey unto the said [purchaser] his heirs and assigns All Those several pieces or parcels of land containing together acres and roods situate in the parish of in the county of

and particularly described in the schedule hereunder written To Hold all the premises Unto and To the Use of him the said [purchaser] his heirs and assigns for ever at the will of the lord and according to the custom of the aforesaid manor and by and under the suits services rents fines and heriots theretofor due and of right accustomed.

IN WITNESS, &c.

THE SCHEDULE.

Barge, Stealing from.-Under the Larceny Act, 1861, 24 & 25 Vict. c. 96, s. 63, it is felony to steal any goods or merchandise in any vessel, barge, or boat of any description whatsoever, in any haven