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every probability that under an improved judicial system the courts will become even more than they have been hitherto, the arena in which many of the battles of public and private life will be fought out. Under these circumstances, it is of the last importance not only that the advocates admitted to practise before the Judges should be well educated, and well trained, but that they should be keenly alive to the peculiarities of their position, their influence for good or evil upon a mixed society, and the importance of the trust reposed in them by their clients, and by the Inns of Court to which they belong.
Of all the painful and humiliating incidents connected with the trial of the claimant to the TICHBORNE baronetcy, the most painful and the most humiliating, so far as the legal Profession is concerned, and more especially the Bar, is the ill-judged and most unfortunate line of conduct pursued by Dr. KENEALY. But in order to understand the accumulated follies which in the aggregate constituted an offence which aroused the indignation and anger of three of the most amiable Judges on the Bench, disgusted a sin. gularly indulgent jury, and shocked the educated public, it is necessary to consider the probable influences of circumstances upon the mind of the offender. Dr. KENEALY, although widely read and liberally educated, is undoubtedly a man of extremely small mind and narrow and contracted views. The class of cases in which he had been mainly engaged was precisely suited to his peculiar temperament, and his conduct of the Overend and Gurney prosecution showed how easy it is for a doubtful case to be made utterly hopeless by ill-judged advocacy. But with all his narrowness and littleness of mind Dr. KENEALY was ambitious, and it is now perfectly plain that when he found himself leading a defence in a stupendous cause, which he more than once boasted was a State trial unparalleled since the trial of Charles I., the little discretion which he possessed disappeared before the overwhelming sense of his own importance. To him it was a great misfortune that he should have been selected to lead such a defence; and whilst we have no desire to shield him from any of the consequences of his misconduct, we think that the nature of the delinquent, and the extraordinary circumstances by which he was surrounded, should be attentively considered before his censure by the Bench and the jury is accepted as a conclusive reason why he should no longer be allowed to practise his profession.
We do not propose to go into the merits of the indictment which must be preferred against the learned gentleman; but it is necessary that we should consider how far forensic excesses are to be justified by circumstances or palliated by a mistaken sense of duty. The first point raised is, what is to be the standard of decorum, and upon what evidence is counsel to be condemned ? We can see many reasons why the denunciation of a presiding Judge should not be accepted even as evidence against counsel. There
may be cases in which it becomes the positive duty of an advocate to resist the control of a Judge, and even to retort upon the Bench. Under such circumstances the Judge becomes pro
hac vice the opponent of the advocate, and when the Judge is summing up, no reply upon him being possible, it is only natural that he should make his assailant feel the full weight of his hand. True it is that in the celebrated canse now ended we have three Judges and a jury all concu
curring in one view, which renders it the more difficult to select any outside standard by which to judge counsel. But as a rule we are disposed to think that an outside standard is the only fair test which can be adopted. The voice of the Profession and of the public ought to determine whether the extreme penalty, if any, is to be inflicted.
In the present instance the public press has, with singular unanimity, called upon the Benchers of the Inns, of which Dr. KENEALY is a member, to consider the course which their duty to the public dictates. We admit that an immediate investigation is inevitable; but, dealing as we are with the subject generally, we must regret that the tribunal before whicho an offending barrister is arraigned to take his trial for dear professional life, is composed of non-representative men. The Benchers of Gray's Inn are gentlemen who have recently shown a disposition to elevate and improve the position of their society, but they are not the most eminent members of the Profession, and we cannot consider that they will constitute a satisfactory tribunal before which the fate of a Queen's counsel charged with grave breaches of decorum and decency should be decided. It is obviously absurd that the governing body of an almost extinct Inn of Court should adjudicate upon a matter in which the entire Profession and the public are so largely interested. The governing bodies of the Inns of Court are not representative, being self-elected, and any one body even if it represented the members of its own society, could not be taken as representing all the members of the other three Inns. There is no other tribunal, however, which can take cognizance of the alleged offences.
The next subject for consideration is the nature of the penalty which should be attached to breaches of professional propriety. Clearly this must depend altogether upon the nature of the offence. We are not, however, without precedents, one being recently furnished by a leading ind of court, the Inner Temple. Mr. EDWIN JAMES was disbarred for sins against his profession rather than against public morality. Driven by overwhelming necessity he
sacrificed his independence by accepting pecuniary aid from an opponent. This and other questionable monetary transactions caused him to be expelled from a society which his brilliant eloquence had adorned, and the decree was found to be irrevocable after years of exile and contrition. Dr. KENEALY, on the other hand, is charged with the most reckless violation of all the rules which should govern the conduct of counsel in the cross-examination of witnesses and in making comments upon their evidence, whilst it is said that the Government of the country, the impartiality of the Judges, the living and the dead who were connected with the case for the prosecution, were reviled in the bitterest and coarsest terms. These are not only offences against the Profession—that they do indeed bring dishonour and discredit upon the Bar is admitted on all hands—but they are offences against public morality, and calculated to impede the course of justice. If proved to the satisfaction of the judges to whom Dr. KENEALY is bound to answer, and if they cannot be excused on the ground of the exigencies of the case, the extreme punishment would seem to be inevitable. It is impossible to contrast such a case with the precedents to which we have alluded without feeling that we have reached the lowest depth which the Profession has experienced, at any rate within the memory of the living.
We would gladly find some excuse for Dr. KENEALY in the extraordinary circumstances which surrounded him, and the enormous and bewildering labour which was imposed upon him. He spoke the truth when he said that he had to contend with difficulties in defending his client which no counsel had ever encountered before. Virtually single handed he had to contend with an array of skill and talent of no mean order-as high indeed as the English Bar could furnish; whilst the keen intellect of the LORD CHIEF JUSTICE allowed scarcely a single fallacy advanced by him to pass without dragging it into light and almost compelling the counsel who supported it to make blind and mad efforts to produce impossible explanations, and to reconcile the irreconcileable. These, undoubtedly, are matters to be considered, and grave as the position is in which Dr. KENEALY has placed himself
, he is as yet uncondemned by the constituted authority, and his case should be approached-as we are certain it will be approached—with scrupulous impartiality and freedom from prejudice, with a full sense of the importance of the issue, not to Dr. KENEALY only, nor indeed to the Profession, but to law and order and the administration of justice. THE LIABILITY OF AN EXECUTION CREDITOR TO
REFUND. A CREDITOR before resolving to sue out execution against the goods of a trader debtor for a sum exceeding 501., should read, mark, and inwardly digest the decision arrived at by Lord Justice Mellish, on the 20th ult., in Ex parte Villars, re Rogers. In that case a creditor whose debt exceeded 501., purchased of the sheriff the goods seized in execution, and the sheriff, after retaining the purchaser's cheque for fourteen days in compliance with the 87th. section of the Act of 1869, returned the cheque to the creditor at the end of that period. Within six months after the sale, a petition for adjudication of bankruptcy against the debtor was presented, on which he was declared bankrupt. The registrar con sidering that the 5th sub-section of sect. 6 of the Act rendered the seizure and sale so followed by adjudication, an act of bankruptcy, ordered the creditor to give up the goods to the trustee. Lord Justice Mellish held that the creditor was entitled to the goods by virtue of his purchase, but that he must refund the purchase money. This is a startling result. We do not say that on the true and fair method of construing the Act of 1869, the result is not a logical consequence of the language used. We do, however, say, that it is impossible to read carefully the 87th section without feeling that it could never have been the intention of the Legis. lature that a creditor fairly and honestly pursuing his legal remedies, was to have his common law rights under an execution interfered with to any greater extent than was expressly provided for by the section; viz., that the sheriff should refrain from paying over the proceeds of the sale for fourteen days, in order that an opportunity might be afforded for the presentation of a petition in bankruptcy. If it had been intended that the right of the creditor should not be absolute at the end of the fourteen days, or at all events as soon as the money was paid over by the sheriff, it is most difficult to understand why such a period, instead of the period of six months mentioned in sect. 6, should have been arbitrarily fixed ; and if such were not the intention, nothing could have been easier than to have provided that, notwithstanding payment to the creditor, his right should not be absolute, but on the contrary, should be defeated, if an adjudication should take place within twelve months, founded on a petition presented within six months from the time of the sale. If for six months the creditor was intended to remain in a state of doubt and uncertainty whether in consequence of the possibility of a petition for adjudication being subsequently presented against his debtor he might not have to refund, some clear intimation of the design of the Legislature should have been fornished, in order that the creditor instead of dealing with the money recovered as his own, might
as a prudent man, place it to a suspense account. We observe 13 L. J. Rep. N. S. 284, Eq.), but notice is necessary to complete that the Lord Justice attached considerable weight to the argu- the assignment of the proceeds to arise by the sale of real and ment that it would be anomalous to allow validity to the sale, the personal estates given to trustees for sale (The Consolidated fons et origo mali, which is declared by the statute to be an act of Investment and Insurance Company. v. Riley, 29 L. J. Rep. N. S. bankruptcy, and which defeats by relation all subsequent transac- 123, Eq.), the rule being that if the interest of the assignor be an tions between the bankrupt and persons affected with notice; and interest in land no notice is necessary, but that notice is necessary also to the argument that whereas sect. 73 of the repealed statute where the interest of the assignor is confined to money to be of 1861 expressly affirmed the rights of the execution creditor, the raised on or by the sale of land : (Re Hughes, 33 L. J. Rep. N. S. Act of 1869 is silent on the point. We by no means wish to under- 725, Eq.) rate the force of these arguments, though we are far from satisfied Where a creditor of a bankrupt assigns his debt, notice to the that they are sufficient to outweigh other opposing considerations. trustee in bankruptcy is sufficient, and where the debt is that of a However the judicial result may be arrived at, we confess that it does company in course of liquidation, notice must be given to the appear to us monstrous that a judgment creditor, whose common official liquidator: (Re Breech-loading Armoury Company, Wragge's law rights have been expressly suspended for fourteen days by the case, L. Rep. 5 Eq. 285.)
5 87th section, should, after experiencing probably much trouble When a fund is standing in the name of the Paymaster-General and delay in recovering what he very naturally must look upon as of the Court of Chancery, it is useless to give the Paymaster. his own money, be exposed to the action of a piece of legal mecha- General notice of assignments of interests therein (Warburton v. nism in the nature of a trap, by which after the interval of many Hill, 23 L. J. Rep. N. S. 633, Eq.), but priority can be gained only months he is to be called upon and compelled to refund it. We by the assignee obtaining a stop order, and lodging it in the regret that a question of this magnitude and difficulty should be Paymaster's office. Where money is paid into court by a trustee, decided on appeal by a single Judge—however eminent.
it is not necessary for an assignee, who, previously to such payment in, has given notice to the trustee, to obtain a stop order,
for a stop order would not prevail over the notice if the trustees SEARCHES, INQUIRIES, AND NOTICES.
then had the money in their hands : (Bearcliffe v. Dorrington, 19 (Continued from page 285.)
L. J. Rep. N. S. 331, Eq.) If part of a testator's estate consists of To complete the assignment of a chose in action, or of any a fund in court, notice to the executors of an assignment of an equitable interest (which by the way may be effectually done by interest in the estate is sufficient without a stop order: (Thompson letter, Lambe v. Orton, 29 L. J. Rep. N. S. 319, Eq.), notice to v. Tomkins, 31 L. J. Rep. N. S. 633.) the debtor, trustee, or other person owing or holding the money, In Macleod v. Buchanan (33 L. J. Rep. N. S. 149, 306), it was fund or other property which, or an interest in which, has been held that a general stop order will be confined to the particular assigned, is absolutely necessary. If a debt be assigned and no incumbrance in respect of which it was obtained, so that in case of notice be given to the debtor, the original creditor can give the a further charge a second stop order is necessary, and in the same debtor an effectual release: (Stocks v Dobson, 22 L. J. Rep. N. S. case it was decided that the name of the assignor should appear in 884, Eq.) If an interest in property held by trustees be dealt the stop order. An incumbrancer who has gained priority by with, and no notice be given to the trustees, they would placing a stop order on the fund will, without a further order, be justified in transferring the property to the original cestui que retain his priority, notwithstanding the carrying over of the fund trust for whom they held it, and, having done so, there is no to a new account, entitled the account of the assignor and his remedy against them to bring back the property : (Donaldson v. incumbrancers : (Lister v. Tidd, 4 L. Rep. 462, Eq.) Donaldson, 23 L. J. Rep. N. S. 788, Eq.) After an assignment of Previously to the passing of the Bankruptcy Act 1862, a chose a debt, and notice thereof to the debtor, he can effectually plead in action or other equitable interest which had been assigned, but the assignment and notice in an action against him by the original of the assignment of which no notice had been given to the creditor : (Jeff's v. Day, L. Rep. 1 Q. B. 372.) The effect of notice debtor or trustee, was considered as being in the order and dispoto the trustee is to convert him into a trustee for the assignee : sition of the assignor, whether the original owner or his assignee, (Dearle v. Hall, 2 L. J. Rep. 62, Ch.)
and so liable to be sold for the benefit of his creditors in case of The assignee who, without notice of any assignment prior to his insolvency or bankruptcy. It was decided in the case of that in his favour, first gives notice to the trustec, will hare Stuart v. Cockerell (L. Rep: 8 Eq. 607), that a mortgagee, prior to priority of title, and the fact that he has or bas not made inquiries the bankruptcy, who had neglected to place a stop order upon
the of the trustee is quite immaterial: (Loveridge v. Cooper, 2 L. J. Rep. fund in court retained his priority over the assignee in bankruptcy 775, Eq.)
by obtaining a stop order which the assignee did not do. As we Notice to the solicitor to the trustee is sufficient, but the soli- have before stated, we do not concur in the decision, and we citor must be acting for the trustee at the time and in relation to believe the law to be as follows: If an assignec neglected to give the property in question (Rickards v. Gledstunes, 31 L. J. Rep. notice the title of the subsequent assignee in insolvency or bankN. S 142, Eq.) Where there are several trustees notice to one ruptcy would prevail, notwithstanding the prior assignee subseis sufficient if he survive (Smith v. Masterman, 3 L. J. Rep. N. S. quently gave notice and the latter assigree altogether neglected to 42, Ex.), even if that one be the vendor or mortgagor (Willes v. do so. If, however, the assignee in insolvency or bankruptcy by Greenhill, 31 L. J. Rep. N. S. 1, Eq.), but if the trustee to whom neglecting to gire notice enabled the bankrupt to assign to notice is given die without informing his co-trustees of the receipt another person, who had no knowledge of the insolvency or bankof the notice, a second incumbrancer, who subsequently gives ruptcy, and who duly gave notice, the title of the assignee lastly notice to the remaining trustees, would seem to be entitled to referred to would prevail : (Re Barr's Trusts, 27 L. J. Rep. N. S. priority: (Meux v. Bell Hare 73.) And where there are several 5-18, Eq.; Re Brown's Trusts, L. Rep. 5 Eq. 88.) As between an executors notice of the assignment of a legacy or an interest in assignee in insolvency and a subsequent assignee in insolvency or the residuary personalty should be given to all, or it would seem bankruptcy, where the first-named assignee had not given notico that the executors to whom notice has not been given may pay to the trustees, the question to be settled would be whether the the legacy or interest to the original legatee, and, consequently, first assignee was aware of the existence of the interest, and, if a second assignee would gain priority by giving notice to all the not, his title would be preferred, because, although the interest was executors: (Timson v. Ramsbottom, 2 Keen, 35.)
left in the order and disposition of the insolvent or bankrupt, it Where there are two sets of trustees, as, for instance, where a could not be said that it was with the consent of the true owner reversionary interest in stock standing in the names of trustees thereof; (Re Rawbone's will, 26 L. J. Rep. N. S. 188. Eq..) becomes the subject of a settlement, upon any dealing with Notice to the debtor or trustee should be distinct, and, for the interests created by the last-mentioned settlement, notice must be convenience of proof, should be in writing, but such is not absogiven to the trustees in whose names the stock is standing, and lutely necessary. In Lloyd v. Banks (L. Rep. 3 Ch. App., at p: an assignment of which notice is so given will prevail over a 490), Lord Cairns declined to lay down any rule as to what would prior assignment of which notice has previously been given to the be a sufficient notice to a trustee, but he considered that all that other set of trustees: (Bridge v. Beadon, L. Rep. 3 Eq. 665.) In was necessary was in some way to bring to the mind of the trustee Holt v. Dewell (15 L. J. Rep. N. S. 15, Eq.), where a person en. an intelligent apprehension of the nature of the incumbrance titled to a reversionary interest bequeathed such interest, and which has come upon the property, upon which a reasonable man, the legatee twice assigned his interest, it was held that until or an ordinary man of business, would regulate his conduct in the the executor had assented to the legacy notice to him would pre- execution of the trust. If the notice be not general, that is if a vail over notice to the trustees holding the fund. And it would mortgage of a reversion to secure a certain principal sum and seem that so long as the second set of trustees have not actually interest, contains a charge in respect of premiums on a policy of received the fund, the title of an assignee of an interest in it, who assurance, and in the notice the deed is referred to as securing the had given them notice of his assignment, would not be preferred principal and interest only, a subsequent assignee will hare priority to that of a prior assignee who had neglected to give such notice over the charge for the premiums: (Re Bright's Trusts, 25 L. J. (Buller v. Plunkett, 30, L. J. Rep. N. S. 641, Eq.; Somerset v. Cox, Rep. N. S. 4-19, Eq.) 33 L. J. Rep. N. S. 491, Eq.), but it is not prudent for an assignee À trustee who, after receiving notice of a charge, deals with the to neglect to give notice to both sets of trustees.
trust funds as if no charge had taken place, will be liable to refund No notice is necessary of dealings with equitable estates in to the person having the
charge, and the fact of the assignee disrealty, or money charged upon land without the intervention of puting the charge will of course make no difference (Hodijson v. trustees, as, for instance, where a testator bequeathed leaseholds Hodgson, 7 L. J. Rep. N. S. 5, Eq.); but a trustee who, without charged with an annuity, it was beld unnecessary for an assignee notice of a charge, which by reason of proper notice having been of the annuity to give notice to the trustees (Wiltshire v. Rabbitts, 1 given to former trustees was complete, deals with the trust funds
as if no charge had been made, will not be liable to refund : (Phipps v. Lovegrove, Prosser v. Phipps, 16 L. J. Rep. N. S. 80, Eq.) The result of the last decision will be to occasion periodical inquiries by the assignee, and the giving to the new trustees when they are appointed copies of the original notice.
From what we have above said it will be apparent that an intending purchaser or mortgagee of an equitable interest must inquire not only of all the trustees of the fund, but also of any retired trustee, and of the personal representatives of any
deceased trustee, whether notice of a charge has been given to any of such trustees. When the fund is in court a certificate of the fund should be obtained from the Paymaster-General's office, which will show what, if any, stop orders affect the fund; and, in addi. tion, when the fund has been paid in by a trustee, inquiries should be made of him and all other trustees, as above stated : when the fund has been paid in under the Trustees Relief Acts, the affidavit upon which the payment took place should be referred to, and should show of what notices the trustee was
Solicitors neglecting to make proper inquiries are liable as for negligence, and so they are if they neglect to give notice to the trustees : (Dearle v. Hall 2 L. J. Rep. N. S. 62, Ch.)
A trustee is bound to give information to a purchaser or mortgagee, he being for that purpose the agent of the vendor or mort. gagor; and a trustee who, even inadvertently, gives wrong information or does not mention the fact that he has received notice of a previous dealing with the property, will be liable to recoup the purchaser or mortgagee any loss he
incur: (Burrowes v. Lock, 10 Ves. 470.)
In the case of a resale or transfer of mortgage of an equitable interest, it is unnecessary, except where the original vendor or purchaser has become bankrupt or insolvent, for the original purchaser or mortgagee to show that notice had been given, because if no subsequent purchaser or mortgagee had given notice, the point is immaterial, but full means must be afforded to the subpurchaser or transferee of inquiry whether notice has or has not been given, and therefore it is necessary to show who from time to time have been the persons representing the character of trustees : (Hobson v. Bell, 8 L. J. Rep. N. S. 241, Eq.)
As no tices of assignments of policies of assurance are the subject of a special Act of Parliament we have not referred to them here, but shall do so hereafter.
THE LAW OF ALLUVION IN ENGLAND AND IN
(Continued from p. 285.) Having now considered the principles of law which govern the subject of alluvion, and also such as govern the acquisition of land by avulsion, it becomes necessary to consider the cases which hare been decided in India, and in the Privy Council, both prior to, and since, the passing of the Act of 1825. One of the first cases of alluvion decided in the Sudder Dewanny Adawlut was that of Isurchund Rai and others v. Ramchund Mothurja (1 S. D. A. 221). The case was heard on 11th Dec. 1807. The court held, that the whole of the lands claimed as having been gradually annexed by allurion to the respondent's talook of Hilalpoor were his property. The deserted bed of a public river, which ran between the two properties of Hilalpoor and Maholah (the proprietors of the latter being the appellants), was declared divisible between the appellants and respondents, each party to be entitled to that part of it contiguous to his own estate, in compensation for loss sustained by them from the excavation of a new channel. It would seem from this case that the doctrine of English law which considers the State as the sole proprietor of navigable rivers, and necessarily of land, when deserted by such rivers, does not apply to cases where there has been an artificial divergence of the channel by State agency.
After the famine now pending in Bengal, in consequence of the extension of the Soane canal, cases of a similar kind are likely to arise. The case of Rajah Griesohund v. Maharajah Tezchund (1 S. D. A. 274), decided on the 8th May 1809, was a suit for alluvion land which had accumulated on the estate of the respondent by the gradual recession of a river that formed the boundary between the estates of the appellant and the respondent, and was afterwards severed from the respondent's estate, and left united to that of the appellant, by the sudden return of the river to its former course. The Sudder Dewanny Adawlut disallowed the claim of plaintiff, i.e., the respondent. It is material to note in this case that the land adjudged to appellant was alluvial land, formed by prior encroachments of the river on respondent's estate, afterwards joined by gradual accession to the estate of respondent, and subsequently re-annexed to that of appellant by the sudden return of the river to its former channel. Had the river, by a sudden change of its course, intersected the old land of respondent's zemindary, leaving each bank still capable of being identified as the estate of respondent, the general law of alluvion, in India as well as in Europe, wouid not have entitled appellant to the land situate between the new and old channel of the river; and the local usage admitted by the parties with respect to Shekust Pywust (literally, broken and joined) or allu
vial land, viz., that the river flowing between the two estates should form their mutual boundary, could not have been available to appellant as constituting a title to land not gained by alluvion. It may be added that the general rule of law is that just as what is gained by gradual accession is the property of him to whose estate the recess of the river or sea has annexed it, so what is lost by the gradual encroachment of the river or sea is a loss without reparation to the owner whose estate is thus destroyed. In the next case that of Radhmohun Rai and others v. Soorujnarain Banojiah (1 8. D. A. 319), decided on 29th April 1811, the plaintiffs and defendant, were zemindars of two estates separated by a river; and the river for many years encroaching in a semi-circular form on the estate of the defendant, washed away lands from the estate of defendant, and annexed them to the estate of plaintiffs, thereby forming the chur or alluvion in question. The court held that on the established principle that land thus gained by the gradual retiremont of a river, under the general rules of alluvion, is the lawfua accession of the estate to which it is so annexed, the plaintiffs were entitled to the chur in question. The next decision was that of Koonwur Hurree Nath Rai v. Mussumut Jyedoorga Burwain (2 S. D. A. 269), heard on 9th Sept. 1818. The suit was a claim to some alluvial land, the river Burrumpooter flowing on each side of the land claimed. Held, that the most equitable decision would be, to gire to the parties respectively the land adjoining to their respective estates. In cases of contested alluvial land the grand channel of a river is considered to constitute the division between the estates; but in this case the evidence was contradictory on this point, each party declaring that the branch which flowed under his boundary was fordable, while the other branch was broad and deep. In Zieboo Nisa v. Persun Rai (3 S. D A. 316), heard 1st March 1824, the claim being to certain lands alleged to have been washed away by the stream from the plaintiff's estate, the judgment was given in favour of the defendants, to whose estate they had become gradually annexed. In the case of Ramkislen Rai v. Gopee Mohun Baboo (3 S. D. A. 340), the Senior Judge of Provincial Court of Dacca, held that iuasmuch as the lands in dispute were surrounded by the plaintiff's zemindaree, they belonged to him conformably to established usage in such cases, and accordingly ordered that he should be put in possession, and he ordered the Aumeen to make an estimate of the profits of the above lands from the existing documents, and to deduct a reasonable sum for the payment of the expenses which had been incurred; the defendants being declared liable for any excess abore such reasonable expenditure. The S. D. A. on appeal on the 26th April 1824, affirmed this decision. The principle of this decree has since been recognised in a formal enactment. Regulation XI. of 1825, sect. 4, cl. 1, provides that land gained by gradual microsco sion from the recess of a river or the sea is to be considered an increment to the tenure of the person to whose estate it may be annexed. One of the first cases since this Regulation was that of Mussumat Imam Bandi v. Hurgoovind Ghose (4 M. I. A. 403). Lands having been submerged, by a change of the course of the river Ganges, after several years, reappeared, each party claiming the lands to be part of his mouza; the Sudder Court held the plaintiff's claim to be barred, first, by the Bengal Regulations of Limitation, from lapse of time; and, secondly, that the lands were alluvial and attached to the mouza of the defendant. Such decree, upon appeal, reversed, the Judicial Committee holding, first, that the question of limitation not having been put in issue by the pleadings, could not be allowed to operate upon the case; and, secondly, that the court had mistaken the question, in supposing it one of alluvion, the point at issue being one of boundary only, and the question being, to whom did this land belong before the inundation; whoever was the owner then, remained the owner while it was covered with water, and after it became dry, and that the plaintiff had made out his title as such owner to possession. This case was decided by the Privy Council on 7th July 1818, but the litigation had commenced in India in 1830. The case of Sree Eckowrie Sing v. Heeraloll Seal (12 M. I. A. 136), was a case of a claim to land washed away and reformed in the bed of a navigable river, the ownership of the soil of which is not commonly in the riparian proprietors of its banks, and which was not proved in the case to have belonged to the predecessor in title of either disputant. Lord Chelmsford in the judgment says, "the reforming of land in such a stream, after a considerable interval and frequent floods, is not primâ facie to be ascribed to a loss from any par. ticular portion of territory, nor is the land which has been removed by a sudden avulsion reclaimable unless the circumstances supply evidence of identity, which is wanting in the case before us.
Again : "The title by accretion to a new formation generally, is not founded on equity of compensation, but on a gradual accretion by adherence to some particular land. The land gained will then follow the title to that parcel to which it adheres." And "a detached chur, independent of usage, in such a stream would belong to neither riparian proprietor, and the circumstance that it was subtended by the land of one would not be enough to entitle him to it.” The Privy Council therefore disallowed the claim of the plaintiffs as being not sufficiently proved, and dismissed the appeal on the 14th Dec. 1868. In the case of Rajah Burdacant Roy v. Baboo Chunder Coomar Roy (12 M. I. A. 145), decided in December of the same year, their Lordships con
sidering that the original title to the land in dispute was in the the waters ultimately subsided and left the land reformed on its appellant's ancestors, were of opinion that they had never lost it, original site. Held, following Mussumat Imam Bondi v. Hurgovind either by the perpetual settlement or by the revenue sale ; and even Ghose (see above), that the land washed away and afterwards reif it were proved that some part of the said land had passed to the formed on the old ascertained site, was not land gained by increrespondent at the time of the sale, they held that the land which ment within the meaning of sect. 4 of Reg. XI. of 1825, but was had since been recovered from the Bheel (marsh) (and great part the old land identified. In March 1872 one of the last cases on the of the land in question was admitted to have been so reclaimed subject decided by the Privy Council was that of Sham Chand since the date of the sale) had not so passed, as their Lordships Bysack v. Kishen Prosaud Surma (14 M. I. A. 595). Two riparian were clearly of opinion that the whole site of the Bheel was and proprietors of land on opposite sides of a river, respectively remained under the dominion of the appellant. This is a remark- claimed churs which had been diluviated, i.e., covered by water, able point for the consideration of Indian lawyers, that the right of for a great many years, and afterwards re-formed by a change of occupancy is considered to be paramount to all grants by Government the course of the river, as belonging to their respective estates. or other parties, and that the settlements by zemindaries under the After a police inquiry, the magistrate, in 1836, put A. in possesPermanent Settlement of Lord Cornwallis are to be strictly con- sion. B., the other riparian proprietor, took no steps till the strued as to the quantity and area that passed under those settle- year 1847, to obtain possession of the churs. Held (1), that the · ments. It was held also in this case, that in a case of disputed long delay in bringing a suit raised a presumption against B.'s
boundaries, where one of the claimants is in possession by virtue and (2), that he had failed to identify the churs as having of a magistrate's order under Act IV. of 1840, it lies on the party been formerly part of his lands, or as an accretion thereto. In con.secking to oust him to show a better title to the land claimed than clusion, it may be well to remind the Indian lawyers, as a matter that of the arty in possession. In Lopez v. Muddun Mokun of practical importance, that Hodges' maps of the Sunderbund Thakoor (13 M. I. A. 467), heard on the ilth July 1870, the facts and Backergunge districts, Reynolds' maps of the north-eastern were, that the land in dispute forming part of a mouzah or estate districts of Bengal, and the recent Survey maps issued by the on the banks of the Ganges, by reason of continual encroachments Survey department of India, are of great usefulness in the litigaof that river, became submerged, the surface soil being wholly tion of these cases for purposes of identification of churs and washed away. After recession and re-encroachment by the river, whether they are accretions or otherwise.
different thing if it was shown that the defendant Gibson v. Brand. N. P. 1841. Action for the had his communication long before with Mr. infringement of a patent. The declaration, after
Strutt, and had taken up Mr. Strutt's invention in the usual averments, assigned as a breach, “ that (By C. Higgins, Esq., M.A., F.C.S., Barrister-at-Law.) Derbyshire, and had constructed something like the defendant directly or indirectly made,
Mr. Strutt's without any knowledge of the plain and put in practice the said invention.” (Continued from p. 286.)
tiff's patent, and had actually borrowed it from C. J., said to the jury, “If they (the defendants) Hondart v. GRIMSHAW. N. P. 1803.-Action Mr. Strutt's, which was good for nothing; it have themselves sold an article of exactly the same for the infringement of a patent for a new mode would be the hardest possible thing to say that fabric, made in the same manner as that for which of making cables and other cordage. Evidence this was an infringement of the plaintiff's patent. the patent was taken out, such sale may be conwas given on behalf of the plaintiff by an
The terms of the patent are, without sidered as a using of the invention within the engineer, who was familiar with the subject of leave or licence, make,' &c. Now if he did terms of the declaration.” (1 Web. P. C. 630.) rope.making, that some rope, proved to be of the actually make these wheels, his making them Walton v. Potter. N. P. 1811.-The question of defendant's manufacture, agreed in its structure would be a sufficient infringement of the patent, infringement is one of fact for the jury. A speand in all its qualities with the rope made by the unless he merely made them for his own amuse- cious variation in form, or ingenious alteration in plaintiff's patented method. The witness knew ment, or as a model.” (1 Web. P. C. 122.) the mode of adaptation, is an infringement of a of no other method of manufacturing such rope, Russell v. Cowley. N. P. 1834.—The specifica- patent. Tindal, C.J., in summing up the case to which he believed to have been made in accordo tion having described the invention to consist in the jury, said: “Where a party has obtained &
" ance with the plaintiff's patent. Held, that this welding iron in the inanufacture of tubes by cir. patent for a new invention, or a discovery he has was primâ facie evidence, till the contrary is cular pressure through dios or holes, the welding made by his own ingenuity, it is not in the power shown, of an infringement of the plaintiff's produced by passing the
iron through grooved of any other person, simply by varying in form of patent. (Dav. P. C. 288; 1 Web. P. C. 91.) rollers, though not so perfect, is an infringement. in immaterial circumstances the nature or subject Hill v. Thompson. 1818.-Dallas, J., deliver. (1 Web. P. C. 462.)
matter of that discovery, to obtain either a patent ing the judgment of the Court of Common Pleas, Minter v. Wells. N. P. 1834.—The invention for it himself or to use it without the leave of the said: “A slight departure from the specification claimed being the application of the self-adjusting patentee, because that would be in effect and in for the purpose of evasion only, would, of course, leverage to the back and seat of a chair, any com. substance an invasion of the right; and therefore, be a fraud upon the patent; and, therefore, the bination of that to the same subject is an infringe. what you have to look at upon the present occaquestion will be, whether the mode of working by ment. (1 Web. P. C. 130.).
sion is, not simply whether in form or in circum. the defendant has, or has not, been essentially or Minter v. Williams. 1835.- Exposing an article stances, that may be more or less immaterial, that substantially different.” (1 Web. P. C. 242; 8 manufactured by a patent process for sale is not which has been done by the defendants varies Taunt. 391; 2 B. Moore 418.)
an infringement of the letters patent. (1 Web. from the specification of the plaintiff's patent, Forsyth v. Riviere. N. P. 1819.-Action for P. C. 135; 5 Nev. & M. 647 ; 4 Ad. & El. 251.) but to see whether in reality, in substance, and the infringement of a patent for the application of Morgan v. Seaward. N. P. 1836. ---Alderson, B., of the plaintiff's invention in order to make that
in effect the defendants have availed themselves detonating powder to the discharge of fire-arms. in summing up the case to the jury, said : “Upon fabric, or to make that article which they have Drawings were annexed to the specification “ex- that subject (infringement) the question would be hibiting several constructions (of locks) which may simply, whether the defendant's machine was only sold in the way of their trade; whether, in order be made and adopted, in conformity to the fore. colourably different, that is, whether it differed to make that, they have availed themselves of the going plan and principles, out of an endless variety merely in the substitution of what are called invention of the plaintiff. (1 Web. P. C. 586, which the subject admits of.” The defendant mechanical equivalents for the contrivances which
589.) applied the principle of the invention by using a are resorted to by the patentee. : You are to the infringement of a patent for the improved
Neilson v. Harford. N. P. 1841.-Action for lock of a different construction to any shown in look to the substance and not to the mere form, application of air to produce heat in furnaces. the annexed drawings. Verdict for the plaintiff. and if it is in substance an infringement, you Parke, B., told the jury that if the invention con. (1 Web. P. C. 97; 1 Carp. P. C. 401.)
ought to find that it is so. If in principle it is Hall v. Boot. N. P. 1822.–The sale of an not the same, but really different, then the desisted, as claimed by the plaintiff, in applying
the article which might, during
its manufacture, have fendants cannot be said to have infringed the air, heated while in transitu, then, however great been improved according to a patent process, patent.” (1 Web. P. C. 171.)
the improvement which the defendant's apparacoupled with the fact of the defendant having the Jupp v. Pratt. 1837. - Alderson, B. _“You tus for accomplishing that object may be on that machine necessary for practising such process in may take out a patent for a principle coupled described in the specification, it is no less an inhis possession, is sufficient evidence of infringe- with the mode of carrying the principle into fringement, (1 Web. P. C. 310.) ment. (1 Web. P. C. 100.) effect, provided you have not only discovered the
Walton v. Bateman. N. P. 1842.-- The doing Jones v. Pearce. N. P. 1832.—Action for the principle, but invented some mode of carrying of the letters patent, is an infringement. (1 Web.
any of the acts specified in the prohibitory clauses infringement of a patent for an improved method it into effect. But then you must start with of making carriage wheels on the principle of having invented some mode of carrying the prin.
P. C. 615.) suspension. A wheel upon the same principle, ciple into effect; if you have done that, then you but of different construction, had been made by are entitled to protect yourself from all other SOLICITORS' JOURNAL, Mr. Strutt prior to the date of the patent. modes of carrying the same principle into effect, Patteson, J., in samming up the case to the jury, that being treated by the jury as piracy of your In a case lately reported from an Irish Court, said : “ The defendant has constructed a wheel original invention.” (1 Web. P. C. 146.)
an affidavit sworn in the matter, by deponents whose construction is on the suspension principle. Ĝillet v. Wilbey. N. P. 1839. Coltman, J., in residing in Canada, was said to be informal, and
That alone would not make it an infringement of summing up the case to the jury, said: "The the officer of the court refused to file it on the the plaintiff's, patent, because the suspension plaintiffs must make out to your satisfaction that twofold ground that while it was a joint affidavit, principle might be applied in various ways; but the whole of the improvements were new, and that there was only a single jurat, also that the if you think it is applied in the same way as some of them have been pirated. It is not neces description of the commissioner before whom it according to the plaintiff's patent it is applied, sary that they should all have been used, but they was made was insufficient, on the ground that, then the want of two or three circumstances in must be shown to be all new, and if they are all whilst he described himself as
commissioner for the defendant's wheel, which are contained in the new, and the defendant has infringed any of them, taking affidavits in Chancery,” he omitted to add plaintiff's specification, would not prevent the it will be sufficient to support the action, and it is “ in Canada.” We are glad to notice that an plaintiff's recovering in this action for an in- not necessary that he should have infringed them order has been made that this affidavit should be fringement of his patent. It would be quite a all. (9 Car. & P. 334; 1 Web. P. C. 271.)
received and filed. It would, indeed, be unfortunato
if, on such grounds, the proceedings should have question, the judgment in which, by the ex Lord described the property as to be sold by the direcbeen delayed, that the affidavit might be returned | Chancellor (Selborne) and the Lords Justices will, tion of the proprietor, who was not named or to Canada to correct the alleged irregularities. It we feel sare, be studied with interest. It is an otherwise described therein, and the memorandum does not appear from the report but that the appeal from, and affirmation of a decision of of the sale, which was endorsed on the particular, affidavit was sworn by the two deponents at the Wickens, V.C., who concludes his judgment thus : and was signed in duplicate immeaiately after same time, and a reference to the Law List shows “With a view to discouraging, as far as possible, the sale by the solicitors of both parties, and was that the Canadian commissioner was what he suits of this nature against solicitors, I shall in the usual form-namely, “I do herebg acknowdescribed himself to be. Solicitors when dis- dismiss the bill against him (a solicitor), also ledge that Mr. William Sale, by Mr. Toomas charging the office of commissioner of oaths can. with costs." The Court of Appeal entirely Veasey, his solicitor, has been this day decla:ed not, of course, be too careful in complying with concurred with the Vice-Chancellor's desire to the purchaser of lots 3, 5, and 6, mentioned and every formality, and that they are so in the gene- discourage such suits.
described in the particular hereunto annexed, at rality of cases is evidenced by the fact that it is
the sum of £1242, and that he has paid a deposit only very occasionally that objection is taken to COMPLAINT reaches us from a solicitor who ap. of £186 ; and I do hereby agree that the vendor, those parts of an affidavit for which they are peared for a defendant charged with felony before on his part, shali in all respects fulfil the condiresponsible as commissioners.
a country bench of magistrates, that notwith. tions of sale mentioned in the said particular."
standing his objection, the partner of the magis. The Solicitor-General (Sir R. Baggallay) and MR. F. H. Janson, in his paper lately read before trates' clerk was allowed to appear and conduct C. Walke: having been heard for the plaintiff, and the Statistical Society, and to which we have the prosecution. We think this a very bad pre- Southgate, Q.C. and Dauney for the defendant, already referred, observes, in reference to the cedent, and one which we hope will not be Sir G. JESSEL, without calling for a reply, said compensations paid to proctors, " That it did not followed, the better opinion being that much evil the chief question was, whether the omission to include the loss of office as practitioners in the may arise from such a practice. We believe the insert the vendor's name in the memorandum of Ecclesiastical Courts." Sir R. Phillimore has rule is that partners of magistrates' clerks never sale brought the case within the Statute of Frauds. recently decided that they have still the exclusive the present right exercised by clerks of the peace almost, if not quite,
the universal practice not to appear as in the above case. This matter and It was a question of great importance, for it was privilege of practising there, and as the race is in the distribution of quarter sessions business insert the vendor's name in the memorandum of rapidly dying out the business must come to a standstill unless the Legislature applies a remedy among local solicitors, needs regulation.
sale, and the form used in the present instance or the litigant parties are willing to conduct their
was one that was used by many of the most cases in person.
repectable auctioneers. For his own part, he FUNERAL OF THE LATE MR. J. C.
did not think he had ever seen a case in which
GROCOTT. MR: F: CALVERT, Q.C., in his Remarks upon the The remains of the late Mr. J. C. Grocott, solici- the vendor's name was inserted in the memoran, Jurisdiction of the Inns of Court, observes as
He did not feel disposed to quarrel follows in reforence to education and etiquette place in the family vault, St. George's church. Vendors and Purchasers, vol. 1, p. 202), that, in
tor, Liverpool, were consigned to their last resting with the conclusion of the text' writer (Dart's affecting the two branches of the Profession: “ To yard, Everton, Feb. 27, the mournful ceremony order to satisfy the statute, both parties should put the examination for the Bar on the same foot being attended by many gentlemen connected bo specified either nominally or by sufficient deing as an examination for the profession of an with the Legal Profession and numbers of the attorney or of a medical man is quite a mistake. general public, who were desirous of paying this
scription. It all came back to the question, Persons who require the aid of an attorney or a
“ What is a sufficient description? Can you find last mark of respect to th doctor, go directly to them. They may sustain Liverpool's best known and highly respected ont from the contract who it ia who is selling
the serious injury, if anyone is allowed to offer him. citizens. The funeral corlege started from the
were self to the world in general, as a practitioner in residence of the deceased gentleman in Park.road, signed by two agents, the names of the principals either of those professions, without having proved a little before eleven o'clock, and reached the missible to show who the principals were ; and
not being disclosed, parol evidence would be adan adequate amount of proficiency. But persons, church at twelve, where a large concourse awaited why should not parol evidence be admissible to who require the aid of a barrister, do not go its arrival. The chief mourners were Mr. John show who was meant by the term vendor ? In directly to him. They consult their attorney, Cooper Grocott, the only surviving son of the fact, "vendor" might be as good a description of and through the attorney as intermediate agent deceased; Miss Elizabeth Mary Grocott, Mrs. consult the barristor.” John Hayward, Miss Catherino Bird Grocott, be admitted to show who was meant by the descrip
a man as his name and surname. Evidence might Miss Martha Adams Grocott, daughters of the tion of vendor, as weli as to show who was meant As yet the office of Chief Clerk to the Lord deceased ; Mr. Chichester S. Willan, nephew; and by the name of John Smith. Here the vendor men. Mayor is still vacant, and we look with some two Masters Hayward, grandsons. Invitations Ansiety for the choice of the City magistracy. were sent to his worship the mayor (Mr. Alder- tioned in the memorandum of sale was the person That it should be bestowed upon a solicitor is man A. B. Walker), Mr. Councillor John Pear-whose direction the auctioneer sold the property,
referred to in the particular as the proprietor, by beyond question, and if not so bestowed solici. son (ex-mayor), and Mr. Joseph Rayner (town and what more could the purchaser want to tors will have far more cause of complaint than clerk), to attend the funeral ; but they were know? The term “proprietor” night be thought the other branch could have if a solicitor were prevented by official business. The mayor's appointed to the office of Solicitor to the Trea. | carriage and that of Mr. Pearson followed
an excellent description of the vendor, seeing it sury. Magistrates' clerks are invariably solicitors, the cortege from the house to the church. Of opinion that the term “proprietor” was a
was so used in recent Acts of Parliament. Being and they bring to bear upon the discharge of Among the gentlemen who attended at the grave sufficient description of the plaintiff to satisfy the their duties the utmost tact and judgment, as to witness the last sad rites performed to their the statute, and that the other defences to the well as a practical knowledge of their work. The departed friend were-Messrs. J. K. Blair, late suit failed,' he must make the usual decree for City authorities will find no scarcity of thoroughly judge of the Liverpool County Court; H. Hime good men if the remuneration is adequate to the and J. F. Watson, registrars of the County Court;
specific performance, with costs. responsibility of this important office.
John Fleet, registrar of the Court of Pussage;
CENTRAL CRIMINAL COURT. The apparent expedition with which some Judges Bremner, David Evans, R. A. Payne, Timpron
THIRD, COURT. of the Court of Chancery get through the business Martin, T. Seddon Smith, J. B. Wilson, Charles
Tuesday, March 3. of their courts is attributable to the practice of S. Goodman, Jenkins,
Charles Pemberton, Mr. throwing upon the chief clerks important duties
Councillor 5. Hughes, Edward Cotton, Richard (Before Mr. Commissioner KERR.) which they were not originally intended to per. Sykes, Henry Bolland, Thomas Baker, T. Parker, agent, was charged with forging and uttering the
Williams, William Williams, John Willox, James CHARLES BARNES Nash, 46, described as form, says Mr. Janson in a paper lately prepared, J. Bromley, J. P. M'Bride, Woodburn, Roberts, indorsement to a banker's cheque for £20, with and he adds, it has often been urged that an addition to the number of judges of this court R. P. Ellis, and Goode, officials connected with intent to defraud. would enable them to work out in chambers their County Court; W. Howell, J. F. Jones, Dr. Gra
Montagu Williams and Walter Ballantine for own decrees, while the facts and circumstances ham, Dr. Lyth, Dr. R. Williams, J. Gilbert, A, W. the prosecution. were fresh in their minds, leaving the chief clerks Chalmers, P. B. MʻQuie, E. Hampson, T. Ambler,
Besley for the defence.
The to dispose of the administrative business, which Robertson, Seaman, Alcard, and others.
The prisoner had been, for nine years, tho is now too often kept waiting for the considera
service for the dead was read'in a most impressive managing clerk to Mr. Alexander Hemsley, soli, tion and discussion of important questions of of St. George's; and those present having taken charge of a Chancery suit, Rowland v. Bingley and
manner by the Rev. T. W. Swift, M.A., incumbent citor, of No. 5, Albany, and in that capacity had principle that would be more properly dealt with by the judges. Another great want is that of
a “long last look” at the resting place of the Bennett, in relation to an estate estimated to be readier access to the judge. If there were the lamented deceased, the sad concourse separated, worth £60,000. The property in question insame facility of appeal from the chief clerk to the Although in his eightieth year, the deceased was
cluded some houses in Greenwich, the rents of judge as there is from a solicitor's clerk to his engaged in the discharge of his professional which, amounting to upwards of £50, were col. principal, as there easily might be if a judge sat his last hour his intellect retained its clearness. duties almost up to the day of his death; and to
lected by the Rent Guarantee Society. In July in chambers three days in each week, much valu.
1872, two cheques drawn by that society, one for able time would be saved. This was suggested
By Mr. Grocott's death the office of sergeant- £38'163. 3d. and the other for £20, in favour of in the report of a very large committee of solicitors at-mace for the borough is rendered vacant. In the executors, fell into the hands of the prisoner, to the Council of the Incorporated Law Society, office will fall upon Mr. "Clarke Aspinall, who, sented the net rents which the society had col. the meantime, the discharge of the duties of the
who gave receipts for them. Those sums represo far back as the year 1851, and this report was afterwards submitted for the consideration of according to the Act of Parliament, will have to lected, but the prisoner for some reason asked to Parliament. See vol. xiii, “House of Commons
act as the sergeant-at-mace until the office is filled have the amount remitted in two cheques instead Reports, 1852.”
up. The council at its next meeting will be called of one, which was done. He gave a receipt for upon to appoint a successor to Mr. Grocott.
£58 16s. 3d., that being the aggregate of the two. SOLICITORS cannot be made parties to suits in
A Mr. Jackson, a builder, had been employed to Chancery with a view to charging them with costs,
do some repairs to the property, but nothing was unless counsel and solicitors are found who are
due to him at that time from the executors. Notready so to charge their brothers in the Profession.
Monday, March 2.
withstanding that, the prisoner got the society The practice of so seeking to charge solicitors has
SALE v. LAMBERT.
to make out a cheque for £20 in favour of Jack. largely obtained of late years, but happily for the Contract of sale-Particular-Memorandum, son, and afterwards, as was alleged, in a disguised credit of the Profession there has grown up by Name of vendor omitted-Statute of Frauds. hand, indorsed it in the name of Jackson. By the side of it a determination on the part of the This was a suit for specific performance. The this he was enabled to receive the money, but ho judges of the High Court of Chancery to set their defendant was the owner of a malting and other never accounted for it to the estate, nor did he face against making solicitors, who are properly buildings situate at Baldock, which were put up produce any receipt of Jackson for it. witnesses in a suit, and who are not primarily for sale by auction in the usual way in July 1872, The defence set up by the prisoner was that the chargeable with any part of the relief prayed, and were knocked down to the plaintiff. There accounts connected with the estate were in much parties to the suit with a view of charging them were several defences to the suit, one of which confusion, and that by a mistake he was led to with costs only. Our readers will do well to con. was that there was no contract within the Statute believe that £20 was due to Jackson, the builder. sider carefully the case of Barnes v. Addy, re- of Frauds, owing to the vendor's name not being He intended subsequently to hand over the money, ported in our present issue, as affecting this ' inserted in the contract. The printed particular but had omitted through forgetfulnogs to do so.