« EelmineJätka »
writing in 1882, thus expressed his views on this thorny question : “ The only line that presents itself to my mind is, that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law and on the other the discipline of the army :” (History of the Criminal Law of England, vol. 1, p. 206).
The Local Government Board is about to be re-organised, and a departmental committee of the Treasury has been appointed to consider the best mode of carrying out the reorganisation. It appears that the increase of work thrown upon the department of late, by such comprehensive statutes as the Local Government Acts of 1888 and 1894 and the adoptive Public Health Acts, has been too much for its powers, and quite recently the Association of Municipal Corporations sent a deputation to Mr. CHAPLIN to represent to him in the strongest terms the inconvenience caused in the large towns, where important works have had to be kept back for want of the sanction of the Board to those local loans which have recently been so frequent, and have been so favourably looked upon by investors. The Board was established in 1871 by the Local Government Board Act of that year, under which it had transferred to it all the powers of the Poor Law Board (the official successors in 1847 of the temporary Poor Law Commissioners established by the great Poor Law Amendment Act of 1834) and some of the powers of the Privy Council. Since 1871 the work of the Board has enormously increased, and its annual Reports to Parliament have contained successive masses of most useful information, especially in connection with the adoption of adoptive Acts.
tion. There is also an amendment of that part of sect. 38 of the Act of 1887 which requires plans of abandoned mines to be sent to the Home Office, and that office is to have the power of prohibiting the use of particular explosives “likely to become dangerous.” The Stannaries Court Abolition Act abolishes the Vice-Warden's court, provides that the jurisdiction of that court is to be transferred to “such of the County Courts as the Lord Chancellor mày by order direct,” and repeals nine prior Stannaries Acts, two wholly, and the remaining seven partially only. Lastly, the Truck Act, which contains twelve sections, enacts that deductions or payments for fines are not to be contracted for except by published and specific contracts, or made without supply of particulars, and contains similar provisions as to deductions or payments for damaged goods or materials. The Home Office may grant exemptions from the Act. After the lst Jan. next, the only statute still remaining in abeyance will be the Judicial Trustees Act, which, with the exception of sect. 3, is not to come into operation till the 1st May 1897, although it received the Royal assent so long ago as the 14th Aug. last -a period of postponement of almost unexampled duration. Sect. 3, which empowers the court to relieve honest trustees from the legal consequences of a breach of trust, came into operation at once, but we believe we are correct in stating that there has not yet been any application to the court under that important section.
In connection with the threatened, and still possible, railway strikes, it may be well to call attention to the 5th section of the Conspiracy and Protection of Property Act 1875, which makes penal any breach of contract involving injury to persons or property.
The section enacts that, “ where any person wilfully and maliciously breaks a contract of service having reasonable cause io believe that the probable consequences of his so doing will be to endanger human life or cause serious bodily injury, or to expose valuable property to destruction or serious injury, he shall, on conviction thereof by a court of summary jurisdiction, be liable either to pay a penalty not exceeding £20, or to be imprisoned for a term not exceeding three months with or without hard labour.” This section does not, of course, apply to cases where a notice of the required legal length to terminate a contract has been given, and the servant quits the service on the expiration of the notice, to the danger of life or property, but at all events gives considerable breathing time to employers prudent enough to engage workmen on contracts requiring reasonable notice for termination.
There are two important search offices frequently visited on behalf of solicitors the Registry of Wills at Somerset House, where are to be found wills proved in the Prerogative Court of Canterbury before 1858 and in the Probate Court after that date ; and the Middlesex Registry Office in Lincoln's-inn-fields, where are to be found abstracts of all deeds and wills affecting property in Middlesex from the year 1708 to the present time. In both offices every attention is given to searchers, and in neither of them are the search fees high. But the indexes in each case for the early periods of the register are in the old “court hand,” very difficult to read without careful attention, and only partially arranged in alphabetical order, all names under one letter being crowded together without any further arrangement. Would it not be possible in each case to issue printed indexes with complete alphabetical arrangement; or if printing be thought to be too expensive, could not proper manuscript indexes be made ? Anyone who has searched the Middlesex Registry for entries in any year after 1828, and on the same day has had to search for entries some twenty years earlier, could testify to the extraordinary difference in the burden of search whi he two cases present. Perhaps the Law Society might see its way to bringing these questions before the proper authorities.
FIVE Acts of Parliament come into operation on the 1st Jan. next : the Coal Mines Regulation Act, the Collecting Societies and Industrial Assurance Companies Act, the Friendly Societies Act, the Stannaries Court Abolition Act, and the Truck Act. Of these, the Collecting Societies Act and the Friendly Societies Act are merely consolidating statutes, not effecting, or rather not intended to effect, any change in the law except in point of form. The Coal Mines Regulation Act greatly extends the power to propose, amend, and modify “ special rules” under the principal Coal Mines Regulation Act 1887, as to lights, explosives, shot firing, watering, and "generally as to the precautions to be adopted for the prevention of accidents from inflammable gas and coaldust," and allows workmen to be represented on an arbitra
(With apologies to the shade of Tennyson). Ring out the old, ring in the new,
Ring happy bells across the snow;
The year is going, let him go, Ring out the false, ring in the true! Ring out the slowly marching cause,
And ancient forms of legal strife;
Ring in the nobler forms of life With quicker hearing, clearer laws. Ring out dead limbs in Inns of Court,
The idle grandeur and the cost;
Ring in the love of truth—not lostRing in the common love of sport. Ring out old shades of legal thought,
Ring out the narrowing lust of gold ;
Ring out all charity that's cold, Ring in new judges, pension-bought.
HOW TO REFORM THE INNS OF COURT. by Mr. Justice North that, as the Rules of the Supreme Court were
silent on the subject, and the old practice was not inconsistent with or It is impossible for the most stick-in-the-mud Conservative
altered by them, an entire discontinuance under Order XXVI., r. 1, had member of the Profession to complain of the tone and temper no greater effect than the dismissal of a bill in Chancery under the old of the very able, learned, and lucid address of Mr. Cavanagh practice, and therefore the court had jurisdiction to make the order on at the Hardwicke Society, which we reported at length last
good grounds shown. week. Secrecy in administration, the withholding of all
Another decision, Re Hanbury, Whitting, and Nicholson (noted ante,
p. 133), has recently been given with regard to the extent of solicitors' accounts, and the exclusion of barristers not Benchers from the
lien for costs on the papers of their clients. The new solicitor obtained Pensions and Parliaments of the Inns were his great points of the usual order for the delivery of a bill of costs and taxation, and on attack. There is no answer to it. Reform is asked for to tendering the sum claimed (though not in settlement) requested the preserve to preserve all that is good, involving of course the delivery of the papers. The Court (Stirling, J.) held that they were destruction of all that is bad. We should like a discussion on
bound to give them up on a proper receipt being given (which had
never been refused), but that the solicitors were entitled to an undertaking the following scheme :
by the client, if on taxation a further sum was found due and remaining GOVERNING BODY.
unpaid, to return them.
In Re McMurdo; Penfield v. McMurdo, Mr. Justice North has held Convocation.
that the personal representative of a deceased person is the proper person [Call the body what you will.]
from whom to demand the payment of a bill of costs, so as to make the
costs carry interest. And this is so, even where the estate, proving One half to be nominated by the President and Fellows of
insolvent, is being administered by the court, and the bill had been the Four Colleges.
delivered to the solicitor of a creditor who had conduct of the case. One half to be elected by the Bar.
There have been several Irish decisions on the subject of costs lately. To be the representative authority of the Bar and ultimate In Re E., a Solicitor (30 Ir. L. T. Rep. 159) a suit had been instituted by the Court of Appeal from the Colleges in matters now appealable
executors of one M. to propound a certain will, which was opposed by M.'s
wife and daughter. Terms were arrived at by which, after paying certain to the judges.
legacies and the costs of both parties, the residue was to be divided To exercise the function of visitors of the Four Colleges. between the widow and daughter. E. acted as solicitor for the executor,
Accounts of the Colleges to be laid annually before Con- and gave accounts to H., the solicitor for Mrs. M., in which he claimed vocation.
£52 for miscellaneous costs. This item was objected to by Mrs. M. E. The Four Colleges.
distributed the estate, and, after deducting his costs, sent their shares to
Mrs. and Miss M. The bill was again objected to, and it was held that To consist of a President and Fellows, co-opted as at she was entitled to have the bill taxed, as it was within twelve months of present; to retain their property and all functions, except the delivery. In Stevenson v. Moorehead and Wood (30 Ir. L. T. Rep. 139) granting and withdrawal of diplomas to practise.
Mr. Justice Madden has decided that, where the solicitor to the plaintiffs
in an action, in execution of the judgment, has placed a writ of fi. fa. in Serjeants' Inn.
the hands of the sheriff, even when there is a return of nulla bona,
the solicitors are personally liable to the sheriff for his fees. This seems To be revived as a College of Judges, to include all persons
truly an extraordinary decision, and is a clear departure from all previous holding judicial ffice, such as County Court judges and
practice. In this country, however, the solicitors of the judgment others whose office disqualifies them for practice.
creditor are not liable to the sheriff or his officer for their fees in the
absence of any contract, and no contract is implied from lodging the writ EDUCATION.
at the sheriff's office : (Royle v. Busby, 43 L. T. Rep. 717). Of course, the The Four Colleges to constitute a School of Law.
decision in the Irish court turns on the wording of Order LXVI., r. 90,
which says the fees "shall be payable to the sheriff by the solicitor or Head: A Senate.
party in person issuing the writ, upon the execution or return thereof." One-third to be elected by the Presidents and Fellows of Certainly, if this is correct law under the Irish rules, the sooner a Colleges.
modification is introduced the better.
THE EFFECT OF CHARGING ORDERS AND ATTACH1. To control the system of tuition in the Colleges
MENT OF DEBTS AS AGAINST A TRUSTEE IN 2. To regulate all examinations.
BANKRUPTCY. 3. To grant diplomas
THE principle of the retrospective relation of the appointment of an (1) To practise as solicitor.
assignee in bankruptcy, known as the doctrine of relation back, had been (2) To practise as barrister.
a principle of the bankruptcy law from the time of Queen Elizabeth, when All students, whether intended for the Profession or not, to the Bankruptcy Act 1883, by sect. 43, enacted that the bankruptcy of be admitted to the classes and examinations of the Colleges.
any debtor, whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to, and to commence at, the time of the act of bankruptcy on which a receiving order is made against him, or to the time of the first act of
bankruptcy within three months next preceding the date of the presentaSOME RECENT POINTS ON SOLICITORS' COSTS.
tion of the bankruptcy petition. The grounds on which the court will order a solicitor personally to pay The duties of a sheriff as to goods of the bankrupt taken in execution the costs of the opponent of his unsuccessful client, have again been are set out in sect. 11 of the Bankruptcy Act 1890 (53 & 54 Vict. c. 71), raised on a summons in an action of Joyes v. Loe and Pocock. In that and are less favourable to the execution creditor than the previous sections case the plaintiff, Mrs. Joyes, had brought an action for false imprison- dealing with the subject. He is, on notice of a receiving order at any ment against the two defendants, which resulted in judgment being time before sale, or the completion of the execution by the receipt or entered for them with costs. In this application an order was sought recovery of the full amount of the lovy, on request, to deliver the goods that the plaintiff's solicitor should personally pay the costs incurred by and any money seized or received in part satisfaction of the execution to the defendants. The law on this subject seems perfectly clear, that there the official receiver, with a provision with regard to retaining the balance, are two classes of misconduct in which the court will intervene and order after payment of his costs, for fourteen days, where the execution is in its officer (the solicitor) to pay the costs himself. The first is, where an respect of a judgment for a sum exceeding £20, and the goods are sold or action has been commenced by a solicitor without any proper authority money is paid to avoid sale, on the chance of receiving notice of a bankfrom the client; and the second, where litigation has been commenced on ruptcy petition and a receiving order on that or any other petition. behalf of an impecunious person without any reasonable prospect of With regard to garnishee orders or charging orders upon debts due to
In the present case, the facts did not bear out either of the the bankrupt there is no enactment in the Bankruptcy Acts specifically above propositions, and so no order was made ; but the Court, in its dealing with their effect as against the representative of the creditors. judgment, approved the two propositions of law.
Sect. 49 of the Bankruptcy Act 1883 has enacted that, in addition to not. In another case, The Gold Reefs of Western Australia v. Dawson (noted invalidating any contract or dealing" with any bankrupt, made in good ante, p. 132), an action had been commenced in the name of a company, faith, for value without notice, by any person with the bankrupt, "transwith two directors and shareholders as plaintiffs, to obtain an injunction actions” by such a person with the bankrupt shall be similarly protected. to prevent further proceedings in the voluntary winding-up of the In Re O'Shea; Courage v. O'Shea (71 L. T. Rep. 827; (1895) 1 Ch. 325) it company. The motion for the injunction was dismissed with costs was admitted that a charging order upon the bankrupt's interest in a against the plaintiffs. Another motion was then brought on by the fund in court obtained subsequently to the commission of an act of bankcompany, asking that their name might be struck out, as the solici- ruptcy by the bankrupt was not an execution within sect. 45 of the Banktors had no authority to join them, and that the solicitors might ruptcy Act 1883, and the Court of Appeal held it not to be a protected personally be ordered to pay their costs. After service of the transaction within sect. 49 (sup.). The contention that,“ transaction”in notice of motion the solicitors discontinued the action by serving notice that section has a wider meaning than “contract" or dealing" in the on the defendants. When the company brought on their motion, the previous Bankruptcy Acts was not acceded to by the court, Lord Justice solicitors took the preliminary objection that the action was gone, and Lindley being reported to have said that, a charging order was not a there was no jurisdiction to make the order asked for. But it was held " dealing" under those Acts, because it was a step in invitum : (Ex parte
Company, which authorised the landlord to distrain for rent in arrear upon the demised premises, and also upon chattels found on other premises in the possession of the lessees, was by way of security for a debt, and therefore invalid unless registered under the Act. According to a paragraph in the Solicitors' Journal (vol. 41, p. 91), the power of distress was a bill of sale only in regard to the chattels on premises other than those demised. If this is the true view, then the exception in sect. 6 has a definite meaning, viz., that a lessor can distrain on the demised premises for what is called the rent of the minerals, though, as we have mentioned above, that is in reality purchase money, but cannot distrain on other premises, as such a power of distress is deemed a bill of sale by virtue of sect. 4, unless the power is registered under the Bills of Sale Acts.
Pillars ; Re Curtoys, 44 L. T. Rep. 691 ; 17 Ch. Div. 653). In that case, although the Court of Appeal were not unanimous with regard to the grounds upon which they grounded their decision, they agreed that a garnishee order attaching a debt due to a bankrupt was not a “ dealing” with the bankrupt so as to be a protected transaction where there was evidence of a previous Act of bankruptcy. The learned Lord Justice, in Re O'Shea, thus explained the reasons for his decision ; “A charging order is much more akin to an execution than to what is commonly called a dealing or transaction. It must not be forgotten that a charging order is obtained in the first instance ex parte. The creditor first gets an order nisi, and then gives notice to the debtor ; then he proceeds (no doubt on notice to the debtor) to obtain an order absolute. That being the nature of the step taken, I cannot think that it is fairly construing the expression “contract, dealing, or transaction” to hold that a step taken behind the back of a man like that and without his sanction, in which he has no part whatever, is a contract, dealing, or transaction with or by him. I think that would be stretching the words too far.”
In Wild v. Southwood (noted ante, p. 63) Mr. Justice Williams had a similar point before him with regard to a charging order which had been obtained upon a debtor's interest in a partnership property. The judgment having been obtained against the debtor personally execution could not issue against the firm's goods, and, as they were entitled to do under sect. 23 sub-sect. 4 of the Partnership Act 1890, the debtor's partners elected to redeem the interest charged, paying the amount for which the charging order had been issued into court. Three days previous to the date upon which the judgment had been obtained against the debtor he had committed an act of bankruptcy. Upon the above facts the learned judge held, that the execution had not been completed, that the judgment debtor's interest in the partnership property vested in the trustee in bankruptcy prior to the charging order, and, following Re O'Shea (sup.), that the charging order was not a transaction protected by sect. 49: (cf. Re Trehearne; Ex parte Ealing Local Board, 60 L. J. 50, Q. B.).
Thus, where the amount for which a garnishee or a charging order has been made has not been actually received by the person obtaining it before three months previous to an act of bankruptcy upon which a receiving order is made, the trustee in his bankruptcy will be entitled to the proceeds.
POWERS OF DISTRESS. MR. JUSTICE STIRLING, in Re The Roundwood Colliery Company (noted ante, p. 108), decided a moot point in the law of distress as regards mining leases. In Messrs. Key and Elphinstone's Precedents (4th edit., p. 901) there is a form for a power of distress for the rents, royalties, or dues reserved or made payable by a mining lease on the property demised, or any adjoining mines, lands, or works occupied by the lessees in connection with the property demised. But in the note on the same page doubt is expressed whether the power of distress is not invalidated by the Bills of Sale Acts 1878 and 1882, so far as it goes beyond the common law power. * In this uncertainty as to the law," the note continues, " it is thought better to retain the clause, which is of frequent occurrence in mining leases."
Distress being immemorially known to the common law exists in many cases, and is not confined to landlord and tenant (Oldham and Foster, 2nd edit., p. 29.) But, as the remedy which this power affords is a summary one, it has been much restricted by the Legislature. For instance, the Bills of Sale Act 1878, sect. 6, enacts that “every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given, or agreed to be given, by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale within the meaning of this Act,” &c. The reason why mining leases are mentioned here is pointed out by Mr. Weir, with appropriate quotations from Lords Cairns, Bramwell, and Blackburn, and Mr. Justice Cave, in his recent work on the Law of Bills of Sale, namely, because a lease of minerals is really a sale of such parts as are worked (p. 179).
In spite of this sect. 6, a bill of sale is defined in sect. 4 as including * powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred.” In Stevens v. Marston (64 L. T. Rep. 274) there was a brewer's agreement for a lease, which provided that the brewer should be entitled to the same rights, powers, licence, claims, and remedies as landlords ordinarily possess in cases of rent in arrear against or on the furniture, stock, and effects of the plaintiff for the recovery of any amount due for any fermented, spirituous, or other liquors, or any other description of goods which should have been sold by him to the tenant, or for any money advanced to the tenant, not exceeding a named amount, and should be at liberty to seize and distrain any furniture, stock, or effects for or in respect of any such debt or amounts, and to sell or dispose of the same as by law landlords are empowered to do for rent or arrears of rent, any law or custom to the contrary notwithstanding. That was a bold attempt to confer a power of distress on a creditor, “any law to the contrary notwithstanding,” and it is not surprising that the Court of Appeal held it to be a bill of sale and void, as it was not registered, though it was valid so far as it was a letting of the premises. A brewer's lease is not within the exception from sect. 6, but a mining lease is. Yet Mr. Justice Stirling decided that a power of distress contained in the mining lease in Re The Roundwood Colliery
ASSIGNMENTS BETWEEN HUSBANDS AND WIVES. A MAN in former days could not assign real or personal estate to himself, even though there were other joint assignees : (Shelford's Real Property Statutes, 9th edit., p. 613). Mr. Joshua Williams from this rule of law illustrated the advantage of the Statute of Uses : “ Thus, if it were wished to make a conveyance of lands from A., a person solely seised, to A. and B. jointly, this operation could not, before the Statute of Uses, have been effected by less than two conveyances ; for a conveyance from A. directly to A. and B. would pass the whole estate solely to B. It would, therefore, have been requisite for A. to make a conveyance to a third person, and for such person then to reconvey to A. and B. jointly. And this was the method actually adopted, under similar circumstances, with respect to leasehold estates and personal property, which are not affected by the Statute of Uses” until the recent legislation : (Real Property, 13th edit., p. 191). As the whole interest passed to the assignee or assignees other than the assignor, they could make a good title to the property assigned, and it would pass to the survivor of them and his heirs or representatives (as the case might be) to the exclusion of the assignor.
By the Act 22 & 23 Vict. c. 35, s. 21, a person was empowered to assign personal property then by law assignable, including chattels real, directly to himself and another person or other persons. It is to be observed that only personalty then assignable could be so assigned. The legal right to a debt or other chose in action was not made assignable until the Judicature Act 1873 (sect. 25 (6). Hence a further power of direct assignment became necessary, and by the Conveyancing Act 1881, sect. 50, it was enacted that, " freehold land, or a thing in action; may be conveyed by a person to himself jointly with another person, by the like means by which it might be conveyed by him to another person; and may, in like manner, be conveyed by a husband to his wife, and by a wife to her husbaad, alone or jointly with another person.” The same rule which prevented a man from conveying to himself and others forbad him conveying to his wife, as in the eyes of the law he and she were one. The Legislature remembered this when adding the second sentence to the 50th section, but forgot that ordinary personalty had not been made assignable between husband and wife. Hence this strange result followed, that they could convey to each other choses in action and freeholds, but not chattels or leaseholds. By the Married Women's Property Act 1882, sect. 1 (1), “A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee."
Messrs. Hood and Challis (4th edit., p. 128) express a doubt as to whether there is anything in this last-mentioned Act to enable a man to assign leaseholds to his wife. “ The more natural construction of the words, in the same manner as if she were a feme sole'
would be to prevent the marital right from attaching to property when it has bsen assigned, not to validate methods of assignment which would otherwise be invalid, unless, perhaps, where the method of holding would itself at common law affect the nature of the conveyance, e.g., if husband and wife hold as joint tenants, they might release inter se.” Chattels seem to be in the same position as leaseholds in regard to this class of assignments, and in Ramsay v. Margrett (70 L. T. Rep. 788; (1894) 2 Q. B. 18) Lord Esher, after referring to the fact that by the old principles a married woman could at law have no personal property, said : Married Women's Property Act was passed to alter this state of the law, and now by virtue of that Act money and other personal property of a married woman does not pass to her husband. For this purpose a married woman and her husband are no longer in law one person; they are two persons, just as if they were two men.” The Court of Appeal decided in that case that a husband could sell furniture to his wife. Further, in Re Duke of Marlborough ; Davis v. Whitehead (70 L. T. Rep. 314; (1894) 2 Ch. 133), Mr. Justice Stirling decided that an assignment of a leasehold house to her husband by the Duchess of Marlborough, which was on the face of it an absolute assignment, must, under the circumstances, be treated as subject to redemption, but did not (according to the report) express any doubt as to the validity of the assignment itself. The question as to the power of the wife to assign may not have been actually raised, but it goes to the root of the case, as, if the assignment was bad, tero was no need to discuss the wife's right to the equity of redemption.
The conclusion would seem to be, that a husband and wife can assign to each other as if they were two men. This is the opinion of Mr. Montague Lush in the second edition of the Law of Husband and Wife (1896), where he says: “They have, in fact, ceased to be one person, in contemplation of law, for the purposes of property. And, therefore, as in the case of contracts betweeen them, so in the case of dispositions of property, they may deal with one another as separate and independent persons, and dispose of property accordingly” (p. 180). Should anyone still doubt
whether leaseholds can be assigned by the one spouse to the other, recourse may be had to a declaration of trust instead of an assignment (2 Key and Elphinstone, 4th edit., p. 668).
COMMENTS ON CASES.
THE Chancellor of the Exchequer for the time being is naturally anxious to swell the amount of the money collected by means of stamp duties, and to shut up the loop-holes by which persons have hitherto managed to escape them. Equitable interests which did not require a deed to transfer them were formerly saved from stamp duty by the simple method of having only a contract in relation to them. But by sect. 59 (1) of the Act of 1891,“ Any contract or agreement made in England or Ireland under seal, or under hand only, or made in Scotland, with or without any clause of registration, for the sale of any equitable estate or interest in any property except lands, tenements, hereditaments, or heritages, or property locally situate out of the United Kingdom, or goods, wares, or merchan. dise, or stock, or marketable securities, or any ship or vessel, or part, interest, shares, or property of or in any ship or vessel, shall be charged with the same ad valorem duty, to be paid by the purchaser, as if it were an actual conveyance on sale of the estate, interest, or property contracted or agreed to be sold.” In Mr. Alpe's Law Stamp Duties (3rd edit. pp. 112-13) a convenient example of the operation of this section, as illustrated by a contract for the sale of a business as a going concern, is given in detail. But it is with the exception of the property locally situate out of the United Kingdom that we are cnncerned this week. In the Smelting Company of Australia v. The Commissioners of Inland Revenue (noted ante, p. 107) there was an agreement for the sale of half a share in a patent granted in New South Wales, and a licence to use the same in a certain district of the colony. A patent is a privilege, and can hardly be said to have a local habitation, or be construed as being locally situate anywhere. Consequently the Court of Appeal have decided that this agreement was not brought within the exception mentioned above.
ACCURACY of description of an intended legatee is obviously a necessary duty on the part of a testator, and yet how careless some testators are. -One such in Re Stephenson ; Donaldson v. Bamber (noted ante, p. 108), gave his residue to "the children of the deceased son (named Bamber) of. my father's sister.” One would naturally suppose that there was only one such deceased son named Bamber, but as a matter of fact there were three. How could the court say which was intended, and the Court of Appeal gave up the task, and declared that the gift was void for uncertainty. They might perhaps have construed “son as meaning "sons,' as Sir Lancelot Shadwell did the word “brother" in the case of Hare v. Cartridge (13 Sim. 165). The gift there was amongst the testator's first cousins, the children of his father's brother of the name of Cartridge, and his nephews and nieces. His father bad two brothers of the name of Cartridge, and both of them died leaving issue in the testator's lifetime. The Vice-Chancellor held that the testator had two classes of persons in his view, namely, his cousins and his nephews and nieces, and he decided that, in the absence of any negative words excluding the children of any brother of his father of the name of Cartridge from taking, the children of both brothers of his father took. Other such uncertain words as “eldest,” “youngest,” “first,” or “second” child should be avoided, unless it is clear at what period the eldest, &c., is to be ascertained. The eldest son at the date of the will might be dead at the date of distribution, and then the question would be mooted as to which date the testator had referred. If the instructions for a will are to give a legacy to my eldest ison at twenty-one, probably the intention would be carried out by a gift to “ the eldest of my sons who survive me and attain twenty-one."
The Rev. Canon Ainger, Master of the Temple, has been appointed to preach next Sunday at the Chapel Royal, St. James's Palace. “ Mr. Justice Mathew " is the title of the eighth of a series of articles
“Our Judges and Famous Lawyers” now appearing in Lloyd's Weekly Nevispaper.
The staff of Messrs. Francis and Johnson, solicitors, of 26, Austin Friars, held their dinner on Wednesday, the 9th inst., at the Holborn Restaurant.
Lord Davey, presiding last week at the Fernhurst Parish Council, Sussex, for the last time before his departure for India, presented the council with a handsome parish chest as a receptacle for the village archives.
The special commission which has been sitting at the Ministry of Justice in Russia, to consider the question of abolishing trial by jury, is stated to have decided, by a large majority in favour of retaining the system.
Mr. Charles Russell, of the firm of Messrs. Day, Russell, and Co., 37, Norfolk-street, Strand, who has been appointed by the Minister of Justice of the Dominion of Canada, to be solicitor in the United Kingdom for the Government of the Dominion of Canada, is a son of Lord Russell of Killowen. Mr. Russell was admitted in 1888.
Lord Russell of Killowen has intimated his willingness to preside at the inaugural banquet of the Castleknock Union, to be held in Dublin on Wednesday, the 6th Jan. The Lord Chief Justice is a past student of Castleknock, one of the oldest and most successful of the scholastic insti. tutions near Dublin.
Lady Herschell will soon be added to the number of lady writers. The wife of the Ex-Lord Chancellor has translated Louis Paulian's interes. ting and entertaining work, “ Paris Qui Mendie: Les Vrai et les Faux Pauvres,” and it will be published by Mr. Edward Arnold early in January under the title of “The Beggars of Paris.”
In the Commercial Court on Tuesday, before Mr. Justice Mathew, Mr. Bigham, in mentioning to his Lordship that the record had been withdrawn in a certain case, said it might be of interest to mention that the writ was issued on the 5th of this month, while the defence was filed and the case settled within ten days. Under the old procedure certainly it would have taken ten months.
The Alabama Senate by a majority of two has passed a Bill permitting women to practise law in all of the courts of Alabama. The old school senators fought it hard, declaring that there was no place for new women in this State, but they could not turn the tide. The passage of the Bill was a great surprise to the public, as none of the other Southern States has permitted women to invade the courts.
The Queen has approved of the appointment of Mr. W. H. D. Boyle, of the Treasury, to be superintendent of the County Court department of the Treasury in succession to Mr. Pike, who retired last autumn. Mr. Boyle was private secretary for several years to the Whips in Downing-street, and he has now, in his new post, to look after some 500 County Courts throughout Great Britain.
A departmental committee appointed last year by Lord Balfour of Burleigh, Secretary for Scotland, to revise the judicial statistics of Scotland, has now adjusted revised headings for the criminal statistics, which have been approved and will form the basis for the return of 1897 and subsequent years. Mr. A. Beatson Bell, Advocate, Edinburgh (late chairman of the Prison Commissioners for Scotland), is chairman of the committee.
Among the pictures in Punch this week Mr. Raven Hill's scene in court is of a " dreary counsel” addressing a judge and jury, all of whom his long-winded oration has sent off to sleep. “Gentlemen," he says, with his own eyes fixed on the furniture of the court, “ you cannot close your eyes--my Lord cannot close his-to this important fact!” The attitudes of the sleepers and the counsel's expression of entire absorption in his oratory are admirably depicted.
The South Australian Parliament have added a clause to their Licensed Victuallers Act practically abolishing barmaids. Women employed as barmaids at the time the Act passed may (we learn from the Australasian Review of Reviews) apply to be registered, and will be licensed to continue in that employment if they wish ; but no new barmaids are to be licensed, and any woman, other than the wife of the landlord, found selling liquor behind a public-house bar will be liable to a penalty of £10, and the licensee himself will also be fined.
On Monday last the December Sessions for the jurisdiction of the Central Criminal Court, were opened at the Sessions-house, in the Old Bailey, before the Lord Mayor; Sir Charles Hall, K.C.M.G., M.P., Recorder of London ; Alderman Sir Reginald Hanson, M.P.; Mr. Alderman Treloar; Mr. Alderman Pound ; Mr. Alderman Halse ; Sir Forrest Fulton, Q.C., Common Sergeant; Mr. Alderman and Sheriff Ritchie; Mr. Sheriff Rogers ; and Mr. Under-Sheriff Halse. The calendar contained the names of seventy persons for trial, and the offences with which they stood charged were thus summarised :--Murder, 1 ; manslaughter, 1 ; bigamy, 4; burglary, 1 ; uttering counterfeit coin, 5; charge under the Explosive Substances Act, 1; forgery, 12; housebreaking, 5; larceny, 15; letterstealing, 1 ; libel, 4 ; demanding money with menaces, 1; misdemeanour, 6 ; perjury, 1; rape, 2; robbery with violence; and wounding, 3. The Recorder, in charging the grand jury, said he was glad to say that the number of prisoners for trial was considerably less than they usually had to deal with at the ordinary sessions of that court. The serious cases were greatly below the average.
It cannot be too often repeated that a covenant for fire or marine insurance is a covenant for indemnifying the insured. In Simpson v. Thomson (38 L. T. Rep. 1; 3 App. Cas. 279), a case of marine insurance, Lord Cairns spoke of “the well-known principle of law, that where one person has agreed to indemnify another he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss.” It was simply this principle which was acted on in West of England Fire Insurance Company v. Isaacs (noted ante, p. 106). A sub-lessee gave up his right to enforce a covenant by his lessor, contained in the sublease, to insure the premises and apply the insurance moneys in reinstating them after a fire. The insurance office, with whom the sublessee had insured on his own account, and who, accordingly, could have exercised by subrogation his right against his lessor, were consequently held entitled to recover the sum which they had paid him. A more frequent illustration of the rule is to be found in cases where the vendor has contracted to sell the property which he has insured. After the contract it is held at the purchaser's risk, who has to pay his purchase money, though the whole property is burnt down. The insurance company succeed to the rights of the vendor, so that, in effect, it is the purchaser and not the insurance company who has to pay for the damage done by a fire. In Castellain v. Preston (49 L. T. Rep. 29; 11 Q. B. Div. 380) the Court made a vendor who had also received the purchase money refund to the insurance office what he had received under his policy. Possibly some day, owners of insurable property will take out policies which will in terms also indemnify purchasers from them. Till that day purchasers are wise if they arrange for the insurance of the property as soon as they have contracted to buy it.
For a member of the Bar to propose in open court to make a bet with the presiding judge as to a point of law is something decidedly novel, says the Pall Mall Gazette. In Dandee, however, where such an incident has just occurred, the citizens are strongly Radical, and consequently have rather a weakness for novelties. In a case which was being argued there before Sheriff Campbell-Smith, the solicitor for one of the parties, finding that he could not convince his Lordship that a certain course should be followed, was struck by a happy idea. He offered to bet the learned sheriff a five-pound note (the money to be paid to the Dundee Royal Infirmary) that his Lordship could not show him a case in which the procedure proposed by the sheriff had been followed by the Supreme Courts. But his Lordship only smiled, and blandly observed that he did not bet with members of his Bar--and the solicitor collapsed.
The Legal Musical Society gave the second concern of the session at at the Freemasons' Tavern on Wednesday evening. Punctuality is evidently at a discount at these gatherings. The concert was advertised for half-past seven, but it was long after that hour when a start was made. When an appeal was made to Mr. Chilcott, the amiable president, he took it all as a matter of course. The hall was well filled, the programme excellent, and the audience enthusiastic, combining to ensure a pleasant evening. Miss Louise Weaver was perfection in her rendering of “ The Gift.” Mr. George Woodward was, as usual, all that could be desired as a musical director. Mr. Rimbault and the other members of the committee did all they could to ensure the comfort of the visitors. We are pleased to note the high position that this society has attained. We noticed many greetings of old friends, who evidently make this the opportunity of meeting. The fourth annual dinner of the society will take place on Wednesday, the 6th Jan. 1897, at the Freemasons' Tavern. Mr. Joseph Walton, Q.C. will preside. The next smoking concert will be held on Friday, the 15th Jan. 1897. Chairman, Mr. J. C. Bigham, Q.C., M.P.
According to Tacitas, wills were unknown among the Germans.
Among the Greeks it was customary to imprecate the most formidable curses on those who should attempt to violate the wishes of the testator.
In 1717 the following singular commitment to the Bastile was made out by order of the Duke of Orleans, Regent during the minority of Louis XV. of France : “ Laurence d'Henry, for disrespect to King George I., in not mentioning him in his Almanack as King of Great. Britain.” How long this unlucky almanack maker remained in prison is unknown.
Mr. Bargrave Deane, Q.C., was entertained at dinner on Saturday last at the Café Royal, Regent-street, by a few friends, members of the Bar practising in the Divorce Court, on the occasion of his “taking silk.” Mr. Inderwick, Q.C., presided, and among those present were Mr. Bayford, Q.C., Mr. Registrar Pritchard, Mr. Barnard, Mr. Woodfall. Mr. Priestley, Mr. Pritchard, Mr. Willock, Mr. Powles, Mr. Dixon, Mr. Murphy, Mr. Le Bas, Mr. Gay Stevenson, Mr. Lipscombe, Mr. Middleton, Mr. Walter Inderwick, Mr. Robin Bayford, Mr. Deane, jun., Mr. Mavrojani, Mr. BalkeleyJohnson, Ms. Rayden, Mr. Gwynne Hall, and others.
A committee consisting of the Right Hon. Sir John T. Hibbert, K.C.B., Mr. T. W. Russell, M.P., Sir Francis Mowatt, K.C B., and Mr. H. W. Primrose, C.B., has been appointed, by arrangement between the President of the Local Government Board and the Chancellor of the Exchequer, to inquire into the sufficiency of the clerical staff and secretariat of the Local Government Board, having regard to the duties devolving on the board, and into the existing divisions of the work, the salaries of the officers, and the organisation of the department generally, and to recommend what changes should be made in the existing arrangements.
The Lord Chancellor on Wednesday made an informal inspection of the Bar Library of the Inns of Court at the Royal Courts of Justice, and likewise of the adjoining room recently granted by his Lordship as an addition to the library, and also as a Bar reading and writing room. Lord Halsbury, who was received by Mr. Napier Higgins, Q.C., and some other members of the Library Committee and of the Bar Council, expressed himself pleased with the arrangement of the rooms and with the rapid development of the library, which already contains upwards of 12,000 volumes of law books, Parliamentary and State papers, chronicles and memorials of Great Britain, and works of reference.
On taking his seat on the bench at Westminster Police-court on Tuesday, Mr. De Rutzen said: Before we begin the business of the day, I am sure that everyone connected with the court would desire me to express the sorrow which we one and all have felt at hearing of the death of Mr. D'Eyncourt. It is some years since he retired from presiding over this court, but the high example which he set when here is as fresh in the recollection of us all as on the day he left. And while we shall ever cherish his memory with affection and regard, we would offer our heartfelt sympathy to all those who were near and dear to him at their irreparable loss.—Mr. Herbert Safford, the Chief Clerk, in sympathetic tones, also referred to the late magistrate, whose kindness he appreciated for nearly forty years.
In reference to the case of Allen v. Flood and another in the House of Lords, involving the action of a trade union in causing the dismissal of workmen, which was heard some time ago before the Lord Chancellor, Lord Watson, Lord Herschell, Lord Macnaghten, Lord Morris, Lord Shand, and Lord Davey, the Lord Chancellor, on Tuesday last, moved that the case be reheard on the 25th of next March, and that the learned judges be summoned to hear the arguments and give their opinions upon the points of law raised. The motion was agreed to. Since the passing of the Judicature Acts the judges have only been summoned as assistants of the House of Lords on one occasion, when the case of Angus v. Dalton was argued before them in 1881.
Mr. Crackanthorpe, Q.C. and his family are much distressed at the sudden disappearance in Paris of Mr. Hubert Crackanthorpe. The circumstances are mysterious because it is impossible to find any reason for the disappearance. Mr. Crackanthorpe, Q.C. is a wealthy man-he changed his name from Cookson to Crackanthorpe some time ago, on sacceeding to a large property--and the son was on the most affectionate terms with his parents, with whom he resided at Rutland-gate. He had a large circle of literary admirers and social friends, to whom the occarrence is a matter of the greatest surprise and pain. Under these circumstances it is believed that he would not knowingly have put his parents and friends to so much grief by leaving his absence unexplained, and it is feared that he has been overtaken by illness or met with some accident.
The question of judges' retiring pensions is a curious one, says the Observer. Roughly speaking, it may be said that a judge's pension may be claimed of right when he has served fifteen years on the Bencb, and that it amounts to two-thirds of his salary. If he bas been promoted from one salary to a more highly paid post (as where a paisne judge at £5000 a year has been made Chief Justice or Master of the Rolls) the pension of two-thirds is calculated on the salary which he has earned for rfteen years. Where, as is now the case, there are many judges who are entitled to retire on a full pension, it would obviously induce serious consequences if they were all to claim their pensions simultaneously, and if every judge retired as soon as he had served his minimum period for pension, it is probable that the amount of these pensions would be considered, and in the case of new appointments reduced. The difference between a judge's full pay and his full pension is often only £1500 a year ---the salary of a County Court judge. This consideration apparently does not induce many judges to retire as soon as they might. There is, in fact, very little inducement to a judge to retire even when it is obvious that he would benefit the public service in so doing, and the question arises whether future appointments to the High Court bench should not be made conditional on a judge's retirement after fifteen years' service, if and when the Lord Chancellor and the First Lord of the Treasary (or Chancellor of the Exchequer) join in requesting him to retire. course would not seriously encroach on our boasted freedom of the Bench from hope or fear. This knowledge that the power existed would probably induce an old and decrepit judge to claim his pension when he was conscious that his power of work was permanently enfeebled by age. It might, indeed, be safely said that the request would never have to be made; and there is a strong case in favour of some such condition being annexed to an appointment of future judgeships.
NOTES OF RECENT DECISIONS NOT
HOUSE OF LORDS. Cheque- Negotiable Instrument-Fictitious or Non-existing Person
Bonâ fide holder.-A clerk of the appellants, by fraud, obtained from them cheques drawn payable to the order of a fictitious or non-existent person, to whom he alleged that the appellants were indebted. He forged the indorsements, and negotiated them with the respondent, who took them bona fide and gave value for them. Held, that the case was governed by the principles laid down in The Bank of England v. Vagliano (64 L. T. Rep. 353 ; (1891) A. C. 107), and that the appellants could not recover the amount of the cheques from the respondent. Judgment of the Court of Appeal (73 L. T. Rep. 496 ; (1895) 2 Q. B. 707) affirmed.
(Clutton and Co. v. Attenborough. H. of L. Dec. 11.---Counsel : E. Tindal-Atkinson, Q.C. and Meek; Sir E. Clarke, Q.C., J. Walton, Q.C., and Macaskie. Solicitors : H. S. Clutton; Stanley, Attenborough, and
Tyer.] Company - Debentures - Floating Security - Mortgage of Assets.-A
company issued debentures on which they agreed to pay interest halfyearly, and charged all their property present and future by way of floating security.' A condition provided that, notwithstanding the said charge, the company should be at liberty to carry on its business and deal with its property until default was made for three months in the payment of interest or until a winding-up order. After an instalment of interest was more than three months in arrear, but before the debenture-holders had taken any steps to enforce their security, the company issued bonds secured by a mortgage of a specified part of their assets. Held, that, as far as their security went, the bondholders had priority over the debenture-holders, as the debentures remained a floating security till some step was taken to enforce it, and it did not prevent the company from dealing with their property. Judgment of the Court of Appeal (72 L. T. Rep. 886; (1895) 2 Ch. 551) affirmed.
[Government Stock Investment Company v. Manila Railway Company and others. H. of L. Dec. 10.-Counsel : Farwell, Q.C. and Disturnal; Levett, Q.C. and P. B. Abraham. Solicitors : Davidson and Morriss; Bompas, Bischoff
, Dodgson, Cove, and Bompas.] Nuisance -- Removal of Snow — Obstruction of Street — Interdict.-A
tramway company had a statutory right to use certain streets of a town for the purposes of their lines and traffic ; and were in the habit, when a fall of snow occurred, of removing the snow from their lines with a snow plough to the sides of the streets, in order to facilitate their traffic, and afterwards of throwing salt on the lines. The town council, who were the local road authority, approved of this method of dealing with the snow. Held, that an inhabitant of the town, who suffered