THE LAW TIMES, THE JOURNAL OF OF THE LAW AND THE LAWYERS FROM MAY то OCTOBER 1912. "THE LAWS OF ENGLAND." By the EARL of HALSBURY and a Distinguished Body of Lawyers. Managing Editor: T. WILLES CHITTY, Esq: IV. UPHELD BY THE COURT OF APPEAL. Volume XI. of Lord Halsbury's "LAWS OF ENGLAND was published on the 1st March, 1911, and on p. 93, par. 152, will be found a certain statement, with cases in note (i.), cited on authorities in support. In spite of that statement, both Master and Judge at Chambers in Knapp v. Harvey took a different view. The following shows the view taken by the Court of Appeal confirming the statement in "THE LAWS OF ENGLAND." To Readers and Correspondents. All communications must be authenticated by the name and address of the writer, not necessarily for publication, but as a guarantee of good faith. Anonymous communications are invariably rejected. All communications intended for the Editorial Department should, in order to prevent delay, be addressed to the "EDITOR OF THE LAW TIMES." Any contributions that may be sent on approval will be carefully considered by the Editor; but no responsibility whatever can be accepted in respect thereof, although, if unsuitable, every effort will be made to return them, provided that a stamped addressed wrapper is inclosed for that purpose. Vol. 133. No. 3605. REPORTS. ... HOUSE OF LORDS. TAYLOR v. LONDON AND NORTHWESTERN RAILWAY Co.-Employer and workman Compensation 354 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. WEBSTER V. BOSANQUET. Contract -Breach- Penalty or liquidated damages LEMM V. MITCHELL. Repeal-Effect.. 357 SUPREME COURT OF JUDICATURE. COURT OF APPEAL. 361 Re BARON NUNBURNHOLME; WILSON v. NUNBURNHOLME. Will - Construction Shares bequeathed to trustees REX V. JUSTICES OF WILTSHIRE; Ex parte JAY.-Practice-Appeal... 364 HIGH COURT OF JUSTICE. CHANCERY DIVISION. ATTORNEY-GENERAL v. LORD MAYOR, &c., OF CITY OF SHEFFIELD. Electric lighting...... KING'S BENCH DIVISION. SHIPTON, ANDERSON, AND Co. v. 367 IRISH NOTES..... 371 372 376 LAZARUS v. CAIRN LINE OF STEAM- Re MARTIN; Ex parte F. G. C. DIXON 16 16 Topics 18 18 18 GENERAL INTELLIGENCE.-Dinner to His Honour Judge Edge - Heirsat-Law and Next of Kin-Appointments under the Joint Stock Winding-up Acts-Creditors under Estates in Chancery-Creditors under 22 & 23 Vict. o. 35 LAW SOCIETIES.-The Law Society: General Meeting-Legal Musical Society International Law Association United Law Society 20 LAW STUDENTS' JOURNAL. - Calls to the Bar The Law Society: Honours Examination 1912 Students' Societies... PROMOTIONS AND APPOINTMENTS CORRESPONDENCE......... 1 1 1 Mr. Edward James Castle, K.C. Mr. James 25 26 26 381 LEGAL OBITUARY. Mr. William Edwin 382 Ranger 27 COURT PAPERS.-House of Lords: Causes Standing for Hearing THE GAZETTES.... 1 27 384 BIRTHS, MARRIAGES, AND DEATHS ... £8 The Law and the Lawyers. Business in the King's Bench. In the House of Commons on Wednesday last Sir RUFUS ISAACS stated that on the 12th Oct. 1910, the date on which the two extra judges for the King's Bench commenced their duties, the total number of actions awaiting trial was 867; that that number has been reduced by more than one-half; and that the number of actions awaiting trial on the 15th April-that is to say, at the beginning of the present sittings was 412. Those figures are correct, but they entirely fail to bring out the fact, which we have insisted upon for months past, that the failure to continue the King's Bench at its increased strength is rapidly putting that division back into its old state of arrear. The following table shows the number of actions for trial at the time when the additional judges were appointed; in October last; in January last, when the additional help disappeared; and at the commencement of the present sittings: Although non-jury cases set down in March last are being heard, special jury actions set down in February and common jury actions set down on the 1st March are still unheard, while the Civil Paper dates back to January. Law Society Meeting-Land Transfer. WE publish in another column a full report of the general meeting of the Law Society, at which, as was only to be expected, the question of land transfer was the principal topic for discussion. The position taken up by the council was undoubtedly the right one, inasmuch as the two resolutions of Mr. RUBINSTEIN, which, on the suggestion of the council, were accepted by the meeting, clear the ground for the proposals to be put forward by the society for simplifying the transfer of land. As everybody who has the slightest acquaintance with conveyancing is aware -we, of course, advisedly except the officials at the Land Registry Office-the compulsory registration of title in London has proved that system to be complicated, dilatory, and costly. Furthermore, the Law Society and its council have made it clear that the amendments recommended by the report of the Royal Commission cannot remove defects which are fundamental. In some quarters it has been urged that the Law Society, while quite ready to criticise the existing system, have put forward no alternative proposals, but the events of the past year have shown this to be quite without foundation. The position taken up has been that, before any satisfactory measure of registration of title can be established, the law relating to the transfer of land must be simplified, and the Law Society have taken this initial step by the preparation of a Bill for that purpose. Whether their efforts in this direction will be successful must be considered doubtful, inasmuch as those in authority are thoroughly imbued with the sweets of officialdom. As was only to be expected, Mr. HUMFRYS and his deputation were received with the utmost courtesy by the Lord Chancellor, who was perfectly willing to listen to and discuss what they had to say; but, if our surmise is correct, and a compulsory system of, registration with its attendant expense is forced upon the landowners of this country, it cannot be said that the Legal Profession has not done its best to protect their clients against the inroad of officialdom, and to render the transfer of land more easy of attainment and less expensive. Collection of Debts on Commission. THE only other matter of importance considered by the meeting was the motion of Mr. BRINSLEY HARPER with reference to the collection of debts and rents by solicitors on commission. This has now been referred to the council for consideration, and perhaps, in a sense, the motion raises some questions of difficulty; but, on the whole, we do not see why some definite pronouncement, so far as the Law Society is concerned, should not be made. The circumstances of Re A Solicitor (105 L. T. Rep. 874), the case which has raised the whole matter, were, as we have pointed out before, quite special, and in the interests of the whole body of solicitors, who desire in no way to be guilty of conduct that may be even suggested to be unprofessional, the matter should be cleared up. In our view, the ordinary collection of debts and rents by solicitors on the terms of a commission being paid on the amount recovered is quite unobjectionable, and is in no sense unprofessional; but we quite sympathise with those members of the Profession who desire an explicit and authoritative ruling on the matter from the Law Society. The Titanic Inquiry. ON Thursday last the first sitting of the Court of Inquiry into the loss of the Titanic was held before Lord MERSEY, as Wreck Commissioner, with five assessors, the composition of the court insuring a searching and thorough investigation. We are glad to see that the Board of Trade have managed to retain the services of Mr. BUTLER ASPINALL, K.C., to appear with the law officers; but considerable comment and astonishment has been aroused by the selection of the two Junior Counsel who appear for the board. We should have thought that the utmost endeavours would have been made to retain junior counsel well versed in maritime matters, and, although we have not one word to say against the ability of Mr. S. A. T. ROWLATT, the Junior Counsel to the Treasury for the King's Bench Division, and Mr. RAYMOND ASQUITH in their respective spheres of business, we feel sure they would be the first to acknowledge that their experience in Admiralty cases and wreck inquiries is not a wide one. We always understood that a Junior Counsel to the Admiralty existed, and also to the Board of Trade, but their names are conspicuous by their absence. The Sessions-house. WE presume that the present generation of lawyers may see the establishment of the new Sessions-house for London and some definite arrangement arrived at with regard to the disposal of the criminal business in the metropolis. During the past week the London justices have passed a resolution protesting against any arrangement being made between the London County Council and the Corporation of London which will in any way deprive the justices of London of their rights, duties, and privileges, while a unanimous resolution of the judges has been forwarded to the corporation that there are serious objections to the proposal for amalgamating the administration of criminal justice at the Old Bailey, and that such amalgamation is not possible. So far as the justices are concerned, it would seem that they want a new building centrally situated, while the special committee of the corporation have reported in favour of amalgamating at the Old Bailey the administration of criminal justice if practicable. Criminal Trials in London. SOME years have now elapsed since the report of the committee presided over by Lord ALVERSTONE was made public, but the various conflicting interests seem to be as far as ever from being brought into line. The arguments in favour of the centralisation in one building of criminal trials in the metropolis are overwhelming, both from the point of view of convenience and economy in time and money. As we have stated before, we believe it to be prácticable to centralise the business in a single building -and the existing premises in the Old Bailey seem to be eminently suitable-and also to amalgamate the administration of criminal justice. We are quite aware that this is only possible provided a policy of give-and-take is accepted by those who consider that they have rights and privileges; but, at the same time, we would point out that the two things to be considered are firstly, the efficient administration of the law; and, secondly, the pockets of the ratepayers. Bankruptcy Reform. IN 1908 a Departmental Committee on Bankruptcy Law and its administration issued a careful and wellreasoned report, which we dealt with (see 125 L. T. Jour. 101, 122) at the time of its publication. At length the Government has introduced a Bill-perhaps better late than never-which proposes to give effect, with some some an modifications and additions, to the recommendations of the committee. Amongst the more important of the amendments of the law now proposed are giving courts of summary jurisdiction power to dispose of bankruptcy and Debtors Act offences; making certain commercial offences criminal; introducing changes as to the after-acquired property of undischarged bankrupt; making married women engaged in trade amenable to bankruptcy notices; avoiding general assignments of book debts against trustees in bankruptcy; and imposing additional restrictions and safeguards as to marriage settlements and deeds of arrangement. It is also proposed to extend the control of Bankruptcy Courts over foreigners trading in this country through agents or partners, and to take away the power of landlords to distrain after bankruptcy for rent payable in advance. We are sorry to see that the recommendation by the committee that the question of discharge should be dealt with by the court in every case, whether the bankrupt applies for his discharge or not, is not included in the Bill; but there is no doubt that the increased stringency of the disabilities attaching to undischarged bankrupts contained in clause 5 of the Bill will afford additional protection to persons having dealings with them. WAYFARERS AND STRAYING BEASTS. Or late years there has been a number of cases raising the question of the liability of the occupier of land adjoining a highway for damage done by his live stock straying upon the highway to persons lawfully passing along it. We know that the soil of a highway is commonly the property of some private owner who is entitled to maintain an action of trespass if persons or their cattle use the highway for purposes other than that of passing along it. We also know that persons who cause an obstruction to the right of the public to pass along a highway are liable to be indicted for a public nuisance; and most of us still think that an individual has a cause of action in tort for damages if, as the direct result of such an obstruction, he meets with a particular injury apart from the injury sustained by the public at large. This last principle seems to have been lost sight of in the later cases we are about to discuss. Another familiar doctrine is that proximity to a highway imposes upon the occupiers of land adjoining the highway certain restrictions debarring them from using their land so as to be a nuisance to persons lawfully using the highway. With these preliminary observations we approach the discussion of the question as to the liability of an occupier of land adjoining a highway for injury done by his straying animals to persons lawfully using the highway. The decisions on this point in the last five years all claim descent from Cox v. Burbidge, decided in 1863 and reported in 13 C. B. N. S. 430. In that case the facts were these: A horse belonging to the defendant was grazing on a newly made road which led to some houses, and which had for some time been used as a road, but not adopted by the parish. The plaintiff, a little boy of about five years of age, was playing in the road, when the horse, which was on the footpath, struck out and kicked him in the face, injuring him very severely. There was no evidence to show how the horse got to the spot or that the defendant knew he was there, or that the animal was at all vicious, or that the child had done anything to irritate it. Those are the facts stated. It is to be observed that it does not appear that the defendant was the occupier of any land adjoining the road. Chief Justice Erle said: "As between the owner of the horse and the owner of the soil of the highway, or of the herbage growing thereon, we may assume that the horse was trespassing; and if the horse had done any damage to the soil, the owner of the soil might have had a right of action against his owner. So, it may be assumed, that, if the place in question were a public highway, the owner of the horse might have been liable to be proceeded against under th Highway Act. But, in considering the claim of the plaintiff against the defendant for the injuries sustained from the kick, the question whether the horse was a trespasser as against the owner of the soil, or whether his owner was amenable under the Highway Act, has nothing to do with the case of the plaintiff." If this means that there was nothing to connect the obstruction to the highway with the damage to the child, then, in view of the evidence in that case, we can only respectfully concur. The Chief Justice continues: I am also of opinion that so much of the argument which has been addressed to us on the part of the plaintiff as assumes the action to be founded upon the negligence of the owner of the horse in allowing it to be upon the road unattended is not tenable. To entitle the plaintiff to maintain the action, it is necessary to show a breach of some legal duty due from the defendant to the plaintiff; and it is enough to say that there is no evidence to support the affirmative of the issue that there was negligence on the part of the defendant for which an action would lie by the plaintiff. The simple fact found is that the horse was on the highway. He may have been there without any negligence of the owner; he might have been put there by a stranger, or might have escaped from some inclosed place without the owner's knowledge. To entitle the plaintiff to recover, there must be some affirma tive proof of negligence in the defendant in respect of a duty owing to the plaintiff." Again, in view of the absence of any evidence that the defendant was the occupier of any land adjoining the highway, no exception can be taken to this part of the judgment. The Chief Justice went on to say that, even if there were negligence on the part of the defendant, there was nothing to connect it with the injury done to the child. He then proceeded to mention the only line of attack open in the circumstances, alluding to the doctrine that a man keeping an animal is only liable if it be feræ naturæ or, to his knowledge, vicious, citing Hudson v. Roberts (1851, 6 Ex. 697), where a bull was being driven down a road, and seeing the plaintiff with a red handkerchief, ran at and gored him, and Jackson v. Smithson (1846, 15 M. & W. 563), where the owner of a ram known to be dangerous was held liable for injury done to the plaintiff by the ram. The Chief Justice says that the damage was done to the plaintiff "in the street," but there is no statement to that effect either in the report in Meeson and Welsby or in any of the contemporary reports. Therefore where injury is done by a straying animal to a person lawfully passing along the highway, the owner of the animal, who, being also the occupier of land adjoining the highway, claims exemption from liability on the ground that he did not know the animal was vicious, cannot rely upon Jackson v. Smithson (ubi sup.), for in that case it does not appear that the injury was done on the highway; nor yet upon Cox v. Burbidge (ubi sup.), for there it is not stated that the defendant was the occupier of land adjoining the highway. In Hudson v. Roberts (ubi sup.) the bull was not straying, and therefore it was true that without knowledge of the animal's vice the owner was not liable. But if the occupier of land adjoining the highway had permitted the bull to stray upon the highway, how then? In Cox v. Burbidge (ubi sup.) Mr. Justice Willes, after devoting five-sixths of his judgment to the discussion of certain quaint views of earlier days touching the origin of a man's liability for damage done by his horses or oxen, concludes with this passage: "The important circumstance in this case is that the act was not in accordance with the ordinary instinct of the animal, which was not shown to be of a mischievous disposition. Does, then, the fact of the horse being upon the highway make any difference? No doubt, if the horse was trespassing there, the owner of the highway might have an action against the owner of the horse. So possibly the owner of the horse might be liable to an indictment for obstructing the highway, or to a fine. But that was not the cause of the mischief here. It comes round, therefore, to the question whether the owner is liable for an act of this sort done by an animal not of a naturally vicious character, and which is not found to have been accustomed to commit such mischief." As usual, Mr. Justice Willes went directly to the weak point in the plaintiff's case. The defendant might have been guilty of a wrongful act, but, if so, there was no evidence to connect that wrongful act with the damage done to the plaintiff, who was therefore driven to rely upon the doctrine of scienter. With these observations we come to the modern cases. In Hadwell v. Righton (97 L. T. Rep. 133; (1907) 2 K. B 345) the plaintiff was carefully riding a bicycle at the rate of about six miles an hour down a highway. On a footpath in front of him were three fowls belonging to the defendant. When the plaintiff got abreast of the footpath, the fowls, being frightened by a dog, flew across the highway and one of them flew into the spokes of the bicycle and upset the plaintiff and injured him and the bicycle. Mr. Justice Phillimore in giving judgment said: "I propose to rest my decision in this case upon Cox v. Burbidge (ubi sup.). The passage in that case to which I would specially refer is in the judgment of Chief Justice Erle." [The learned judge then cited a passage from the judgment of Chief Justice Erle, set out above, and continued:] "In the present case the County Court judge assumed that the fowls were unlawfully upon the highway, as they were not using it for the mere purpose of passage either in the company of their owner or without him. Even if we adopt that assumption, was the damage which in fact happened of such a nature as was likely to result from their unlawful presence there? There was no antecedent probability that the fowl would be frightened by dog, still less was there any probability that, if so frightened, it would fly into the spokes of a bicycle. The owner was not bound to contemplate such a result as likely to flow from his letting the fowls be at large upon the road. Now, with all deference, this is to substitute the measure of damages in an action of contract for the extent of liability in an action of tort. If the fowls were wrongfully on the highway, the liability of the defendant depends, not upon what he might reasonably contemplate, but upon what actually happened as the direct consequence of his wrongful act, whether he may reasonably have contemplated it or not. It may be that three fowls upon a highway are not such an obstruction as the law will take any account of. But if they did constitute a substantial obstruction, then the question was, not what the defendant might reasonably contemplate, but whether the injury to the plaintiff was the direct consequence of the obstruction) Mr. Justice Phillimore continued: "So far, I have assumed that the County Court judge was right in treating the fowl as wrongfully upon the highway, but I cannot allow the case to pass without saying that I think the plaintiff's counsel have put too narrow a limitation upon the uses to which a highway may lawfully be put. It was said that the rights of members of the public in a highway were confined to passing and repassing, and that animals, except when accompanied by their owners, have no right to be on the highway at all. In the first place, I think that members of the public, in addition to using it eundo et redeundo, are also entitled to use it morando for a short time. And I doubt whether, even with that addition, the lawful uses are thereby exhausted. For instance, if fowls are kept near a highway, and there is a corn stubble belonging to their owner on the other side of the road, to which they might naturally and properly go, I am not prepared to say that to allow them to go there by themselves would be an unlawful use of the highway by their owner, simply because they might, while so doing, run or fly into someone who was riding a bicycle." As to this, it is to be observed that there is no authority for the position that highways are dedicated to the use of animals apart from the ordinary and reasonable uses of man. Mr. Justice Bray said: 66 I am of the same opinion. We cannot decide this case in the plaintiff's favour without overruling Cox v. Burbidge (ubi sup.). We have no power to overrule it, nor should I be inclined to exercise that power if we could. It is said that the fowl was trespassing. But the cases which were relied upon as showing that that would give a cause of action were cases in which the plaintiff was the owner of the soil on which the trespass was committed, and are consequently not in point, for here the cyclist had no interest in the soil of the highway. Where is there anything dangerous in letting fowls stray on a highway? The business of farming could not be conveniently carried on if such an act were not permissible. Homsteads are usually near a road, and it is practically impossible to keep fowls in. I should not hesitate to find that there was no danger at all in allowing them so to stray. Such an accident as this I have never heard of before. And, in the absence of anticipated danger, there is no room for the suggestion of negligence." Here again we suggest that "anticipated danger" is not the test of liability. Obstruction to the highway and damage as the direct consequence; those are the tests. It may be that in this case there was no obstruction, and that, even if there was an obstruction, the damage was not the direct result of it. If there was an obstruction, and directly resulting damage, to speak of anticipated danger is beside the mark. The next case in order of date is Higgins v. Searle (100 L. T. Rep. 280). In that case the plaintiff was the owner of a motor-car which was travelling from Newquay to Truro. A horse and van were coming in the opposite direction. By the side of the road; lying on the grass and close to a hedge was a sow belonging to the defendant. The driver of the motor-car sounded his horn. The sow rose suddenly from the side of the road, the van horse shied; and the motorcar, in the efforts of the driver to avoid the van, ran into a stone wall and was damaged. Mr. Justice Lawrance at the trial asked the jury several questions, which with their answers were as follows: No. 1. Was the defendant guilty of negligence in allowing the sow to be on the road?-Answer: No. No. 2. Did the sow cause the horse to shy ?-Answer : Yes. No. 3. Assuming the sow to be lying on the road as described, was the probable result that the horse would shy ?--Answer: Yes. No. 4. Was the driver of the car guilty of contributory negligence? On this point the jury could not agree. On these findings the defendant moved for judgment, but Mr. Justice Lawrance refused to enter judgment in his favour. The defendant appealed. In the Court of Appeal Cozens-Hardy, M.R. in giving judgment said: "We have had an interesting argument by counsel for the plaintiff that a person who allows his cattle to stray on the highway without negligence is liable in damages for any consequences that may happen from such straying. No doubt that is so, but liable to whom? To the owner of the soil for damage done to him, but not for damages such as are claimed in the present case. It has never been held that cattle straying innocently on the highway not only render the owner liable for damages caused to the soil, but also for damages caused to any person on the highway. That contention was negatived by the court in Cox v. Burbidge (ubi sup.)." The Master of Rolls then cited a passage from Cox v. Burbidge which has been cited and discussed above. Lord Justice Moulton and Lord Justice Buckley agreed, and judgment was entered for the defendant. In view of the finding of the jury that the sow was upon the highway without any negligence on the part of the defendant, the principle of this judgment is that the owner of an animal is not, merely in respect of his ownership, absolutely bound at his peril to keep the animal from straying upon the highway. In this sense the judgment is probably right, and is supported by Cox v. Burbidge (ubi sup.); but it is quite consistent with the view that the owner of an animal, if he is also the occupier of land adjoining the highway, owes some duty to persons lawfully using the highway. The next case is Ellis v. Banyard (104 L. T. Rep. 460). Here the facts were these. On the 6th Aug. 1910 the plaintiff, a domestic servant, was cycling at 10.30 p.m. along a road adjoining a field belonging to the defendant in which some hundred cows were kept. She saw some cows coming out of a gate giving access from the field to the road; a little further on she saw other cows crossing the road. She slowed down in order to dismount and was knocked down by the cows, one of which trod upon her and broke her leg. It was proved that the gate had become out of repair and had been mended by means of an iron hurdle wired to the two gate-posts in such a way that the gate could be opened or lifted. No evidence was |