THE opening of the year 1897 has been marked by a singular readiness on the part of members of the Judicial Bench to write to the newspapers. We welcome the development, because very often judges can alone explain some matters which the Profession and the public find it difficult to understand. Sir FRANCIS JEUNE has stated plainly that there is no decline in the business of the Probate, Divorce, and Admiralty Division, but that there is, nevertheless, an absence of arrears. This can only mean that the two judges of this division have, by conscientious and steady assiduity, not only kept abreast of business which is increasing, but extinguished the arrears which for a considerable period existed. We are glad to observe that the President significantly adds that no inference is to be drawn from the state of business in his court as an argument against the increase of judicial strength elsewhere which competent persons advocate.

MR. JUSTICE WILLS is the other Christmas contributor to the columns of the Times. He deals with Sir HARRY POLAND'S proposed law reforms, and protests against the release of jurors during trials being left to a judge's discretion. We agree. The view is sound that judges may be exposed to much invidious criticism when given too much discretion. They are on surer ground when acting upon statutory rules.

WE regret, however, to have to differ from the learned judge upon other points. He attaches, we think, undue importance to the sentiment of pride which localities feel in their assizes. He appears to think that the manhood and strength of the North and North-East would suffer if assizes ceased to be held as they now are. Nothing of this kind should, in our judgment, stand in the way of the swift and economical administration of the law which we believe would be secured by adopting the proposals of Sir H. POLAND. Sir ALFRED WILLS goes far to show that, at any rate so far as he is concerned, there has been little wasted time on circuit. This is not the common experience. Not only days, but weeks, have been thrown away on several circuits during the past eighteen months, and notwithstanding this judicial vindication the present circuit system stands condemned as wasteful and inconvenient. We repeat, however, our cordial welcome to a judge who enters the field of controversy, which no one willingly occupies except to promote the reforms-or retain the status quo-which he thinks to be desirable.

THE Times has been also particularly energetic concerning legal matters this Vacation, but we are sorry to observe that its contributors have failed to study in every aspect the subjects which are troubling the Profession. In its record of the year 1896 it refers to the discontent with the present system of electing Benchers, and asks whether it would be desirable for a leading Q.C. to canvass for votes. This criticism has already been answered. Canvassing is almost out of the question. It is not resorted to by candidates for the Bar Council, although the candidates were largely in excess of the vacancies. The Bar refuses to be canvassed. The man who attempted to influence votes would assuredly descend to the lowest position on the poll.

AGAIN, the Times is feeble and unsatisfactory on the burning question of judicial retirement. If all judges were retired

after fifteen years, how the country would be burdened with pensions so it exclaims. The country has already accepted this position. It can now be burdened with all possible pensions, because they are payable to all judges who retire after fifteen years' service. No change would arise in this respect. The undesirability of all judges, however efficient and however early appointed, being compulsorily retired is also pressed. This could be met by making every judge eligible for re-election for a further period of five years. As a matter of course a valued judge would be re-appointed.

Ir is also to be remarked that the writer seems to suggest a serious reflection upon the judges in this observation : "It would be perilous to have members of either class (short service bishops or judges-why short service'?) under notice to quit, which would be enforced unless they so ingratiated themselves with the Government of the day as to secure a re-nomination." How can a judge in this country ingratiate himself with a Government? Could Mr. Justice GRANTHAM again take to the platform, or Lord ESHER decide all Revenue appeals in favour of the Crown, or Mr. Justice HAWKINS again pursue a ROGER TICHBORNE? not, what would be their little game?

If

BUT the conclusion arrived at by our contemporary is that which we referred to as feeble. The writer manifestly does

not wish to offend the sensitiveness of the judges who refuse to retire. This may be judicious, but it is lamentably weakkneed. Judges do not mind criticism in the least. Our experience is, that they respect their candid critics rather than otherwise. What can they think of this ending of the Times article?

A crowd of "grand old men on the Bench is certainly not desirable. It is preferable, however, to leave these matters to the sense of honour and fitness of those nearest concerned. Hitherto judges have retired when they thought fit. The results have been, with rare exceptions, satisfactory, and the likelihood is that the Bench will long continue to escape interference of any kind in this respect if it shows a due sense of responsibility, and exercises in the last resort that pressure which it has rarely applied either too soon or too late.

What does it mean? The Bench is crowded with old men, grand or otherwise, who cling to their seats among the scoffs and cavils of the Profession. Is the pressure being applied too soon or too late, or what?

ACCORDING to the Publishers' Circular, the law books published in 1896 are double in number of those of the previous year, but only slightly exceed those of 1894. The figures of new books and new editions are interesting, and those concerning law and jurisprudence are as follows:-1895. New books, 57; new editions, 33. 1896. New books, 132; new editions, 50.

THE excellent letter of Mr. FRANCIS STRINGER to the Times of the 2nd Jan. shows strongly the need of some sweeping reform in the manner in which the oath is now administered in English courts of law. The medical opinions as to the present mode of administration, by kissing the book, are all one way, and there can be no doubt in the minds of persons who have seriously considered the question that a more convenient form of spreading contagious diseases could not well be devised. Of course, we are quite aware of the facts that any witness can now claim to swear with uplifted hand as is the form of the oath administered in Scotland; but how many litigants or witnesses are aware of such a right, and how often are they informed of such on their getting into a witness-box? In but one court in England are they always informed of such a privilege, and there notices to that effect are placed in all parts of the court-house. But what is required is a certain definite change in the law, that all oaths should be administered and taken in the form now prevalent in Scotland, and so to do away with a danger to

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all persons, who, not cognisant of their present rights, still continue to kiss the book." Of course, such a change would not affect those who affirm on account of the absence of religious belief.

THE BISHOP OF WINCHESTER has announced his intention of endeavouring to procure an alteration of the law whereby "opposers" to episcopal confirmations are publicly invited to come forward, with an intimation that they shall be heard, and then when they come forward are unable to obtain a hearing, and the ARCHBISHOP OF YORK has declared his regret that Mr. BROWNJOHN's objection to the confirmation of the ARCHBISHOP OF CANTERBURY could not be heard. In the present state of the authorities we think that it will be necessary, if this intention is to be carried out, to amend the statute of Henry the Eighth (25 Hen. 8, c. 20), by declaring what objections are to be heard on a confirmation and what are not. To confine the objectors to mere disproof of identity would be to do away with the right of objection altogether. Might not, however, a right of objection be given on the ground of the archbishop or bishop not being within the canonical age or not having been ordained? The statute gives the widest power to the Sovereign to signify by letter missive accompanying the congé d'elire sent to a dean and chapter, "the persone which they shall electe and chose." If the statute is to be amended, it may be as well to make it just a little precise in mentioning the qualifications of the "persone," and it is not a little singular that, though the rubrical ages for ordination (not less than twenty-four for a priest, and not less than twentythree for a deacon) have been confirmed by Parliament in 44 Geo. 3, c. 43, there is no statute requiring a bishop to have reached any particular age, although the minimum canonical age is thirty.

THE ARCHBISHOP OF CANTERBURY, having been duly "confirmed" at Bow Church, will shortly pass through the remaining stages of consecration, enthronement, and homage for the temporalities, all Mr. BROWNJOHN's thrice-made objections to his confirmation notwithstanding. With regard to these objections, which appear to have solely proceeded on the ground of alleged unorthodoxy, it is material to point out that the legal questions, whether confirmation is a ministerial or judicial act, and whether objectors are entitled to be heard at Bow Church, are still technically undecided. In the great ease of Reg. v. Archbishop of Canterbury (11 Q. B. 483), the Court of Queen's Bench was equally divided on these very points, the fact that in that case it was a bishop and not an archbishop whose confirmation was objected to not making any difference in point of law. The ground on which Lord DENMAN and Mr. Justice ERLE, in refusing a mandamus to hear, proceeded was, that the statute of Henry the Eighth (25 Hen. 8, c. 20) made it compulsory on the commissioners to confirm. The words of that statute are to the effect that, if the commissioners "do not confirme, invest, and consecrate with all due circumstance within twenty days" after election signified, they "and their aydours, counsaylors, and abettours shall ronne into the daungers, peynes, and penalties of the estatute of the provysion and premunire made in xxv. yere of the reigne of Kynge Edwarde the Thirde and in the xvi. yere of Kynge Richarde the Seconde." Mr. Justice COLERIDGE and Mr. Justice PATTESON held that these words do away with the necessity of hearing objectors, or that, at least, the Court of Queen's Bench ought to have required a return to the mandamus, in which case the legal questions involved might have "got upon the record," and so be brought for determination before a Court of Error. In the absence of such determination, the question of the construction of the statute is still open. The judgments of the Court of Queen's Bench will well repay perusal, and so will the whole of the very curious and clumsy statute "for the restrayning the payment of Annates." The main intent of this statute, in Second Sheet.

which, singularly enough, the interlined word "confirme " appears to have been omitted by its first transcriber, was to resist the exactions of "the Bisshoppe of Rome, otherwyse called the Pope," and there is some ground for saying that the penalties thereby imposed would only attach, not so much to the refusal, on proper grounds, to confirm a person whose election had been directed by the Sovereign, as to the putting forward a "Pope's candidate," and confirming him.

THE RIGHT TO FIXTURES.

"IN regard to fixtures and a claim to remove them, the law has regard to the relations of the parties and differs according to the nature of that relation. As between (1) landlord and tenant, the claim of the tenant to remove fixtures set up by himself is the most favoured (vide now upon this subject the Agricultural Holdings (England) Act 1883, stat. 46 & 47 Vict. c. 61, s. 34, and the Market Gardeners' Compensation Act 1895, stat. 58 & 59 Vict. c. 27); (2) as between tenant for life and remainderman the claim of the tenant for life to remove fixtures set up by himself is less favoured; (3) as between executor and heir where both claim under the same owner, the claim of the executor to remove fixtures set up by the same owner is still less favoured. In former times it has been said that the heir was a favoured person, but, in my opinion, no distinction can be maintained between a claim by the executor against the heir and a claim by the executor against the devisee": (per Mr. Justice Chitty, 75 L. T. Rep. 206). This classification agrees with that made by Lord Ellenborough C.J., in the case of Elwes v. Maw (3 East, 38), extracted as one of the leading cases upon the subject of fixtures in the second volume of Smith's Leading Cases, although the decision itself in that case would at the present day be affected by the provisions of the Agricultural Holdings Act 1883 (sup.). As is pointed out in the notes to that case, another class of cases in which questions have arisen as to the right of fixtures are those between (4) vendor and vendee; (5) mortgagor and mortgagee (as to which vide loc. cit., and 97 L. T., 4; Conveyancing Act 1881, stat. 44 & 45 Vict. c. 41, s. 6 (2); and Gough v. Wood, 70 L. T. Rep. 297; (1894) 1 Q. B. 713); and as between (6) trustees of bankrupts and other parties. According to the learned editors of Smith's Leading Cases, the rights of the devisee of lands against the executor of the devisor would seem on principle to be the same as those of the heir in whose place the devisee stands, and according to Mr. Justice Chitty (75 L. T. Rep. 296) no distinction can be maintained between a claim by the executor against the heir, and a claim by the executor against the devisee.

The right to remove fixtures depends upon grounds analogous to that of emblements, viz., that it is for the public good that a person having a limited interest, who erects a fixture for the better use and enjoyment of the land, should not be deprived of it by the claim of the remainderman or reversioner on the ground of its annexation to the freehold (Tudor's Leading Cases, Real Prop. 88, ed. 2), although this reason has of course no application where the person erecting a fixture is owner in fee simple.

The rule of law expressed by the maxim Quidquid plantatur solo solo cedit, by which whatever was fixed to the freehold became part of it and could not be taken from it (Co. Litt. 53 a.; 4 Rep. 84 a.), and which appears in the civil law as a particular instance of accession, the text reading" Omne quod inædificatur solo cedit" (Just. Ins. lib. 21, 29), has been relaxed in the manner shown in the notes to Elwes v. Mawe, (in Smith's Leading Cases). These exceptions from the principle that a fixture is governed by the same law which applies to the land with which it is incorporated and ceases to follow the law of personalty were established by judicial decisions because reason and convenience seemed to require the law to be so qualified (Buckland v. Butterfield 2 Brod. & Bing. 54; Horn v. Baker, 9 East. 215).

The following passage from Williams on Personal Property shows the result of the practical distinction alluded to by Mr. Justice Chitty: "Machinery employed in carrying on ironworks or collieries may be removed by a lessee for years, if erected by him; but if erected by a tenant in fee simple, such machinery even through removable without injury to the freehold, will belong to the heir or devisee of the land." However, it seems that pier-glasses fixed by nails (though this is stated not to have been formerly the law by Serjeant Vaughan in his arguments in Elwes v. Maw (sup.) and not let into panels, and hangings fastened up for ornament, will now belong to the executor or administrator of a tenant in fee simple, as part of his personal estate : (Wms. Pers. Prop. p. 16, edit. 7, citing Cave v. Cave, 2 Vern. 508).

In Norton v. Dashwood (75 L. T. Rep. 205) the question arose between the plaintiff as executor of a purchaser from the widow and residuary legatee of a former owner of certain ornamental tapestry, and the defendant who was devisee of the house in which it was, the defendant contending that the tapestry passed with the house as a fixture. The tapestry had been cut and pieced so as to fit and cover the spaces left by the doors and mantelpiece. It appeared not to have been originally designed for the room, additions having been made to it, and it was strongly fixed by old iron nails to battens let into the plaster down to the brickwork of the wall. The tapestry and the brick work would have been injured by its removal. Mr. Justice Chitty held that the tapestry was part of the room and passed with the devise of the house itself, holding that the case was covered by Lord Romilly's decision in D'Eyncourt v, Gregory (L. Rep. 3 Eq. 382), which was a case between tenant for life and remainderman, and where it was held that tapestry, pictures in panels, frames filled with satin and attached to the walls; and also statues, figures, vases, and stone garden seats, purchased and placed by the testator, which

were essentially part of the house, or of the architectural design of the building or grounds, however fastened, were fixtures and could not be removed; but that glasses and pictures not in panels, not being part of the building, passed under the testator's will: (cf. Huddersfield Banking Company v. Henry Lister and Son, 72 L. T. Rep. 203; (1892) 2 Ch. 517).

SOLICITORS AND WITNESSES' EXPENSES.

A POINT of the greatest importance to solicitors has been recently brought up again for discussion, as to their personal liability to witnesses whom they have subpoenaed to attend on a trial in which they, the solicitors, are acting for one of the parties. In the case in which the point was raised, the plaintiff had been served by the London agents of the defendants with a subpoena issued by them, and at the same time 10s. was given him as conduct money, on behalf of the defendant in the original action, which was tried in the Queen's Bench. That trial lasted for two days, and ended in a verdict for the defendant with costs, and those when taxed included an item of £2 odd for the charges of the plaintiff in the present action. This item, together with the other taxed costs, was paid by the plaintiff in the original action to the London agent of the present defendants, who had duly accounted for them to their client, the original defendant. The witness now brought an action against the country solicitors for the recovery from them personally of his charges, as money that they had received to his use. The County Court judge held, that the solicitors were not liable apart from any special agreement to pay, and that they only received the costs under the taxing order on behalf of their lay client, who was the proper person to sue.

The law on this subject is clear on the authorities. In Rolins v. Bridge (7 L. J. 49 Ex.) it was laid down that there was no implied contract on behalf of the attorney or agent who subpoenas a witness, to pay his expenses. As Lord Abinger says in that case: "The attorney is known merely as the agent, the attorney of the principal, and is directed by the principal himself. The agent acting for and on the part of the principal does not bind himself unless he offers to do so by express words; he does not make himself liable for anything, unless it is for those charges which he is himself bound to pay, and for which he makes a charge."

The same rule was upheld in the case of Lee v. Everest (26 L. J. 334, Ex.), where it was held that an attorney was not in any way liable for the charges or expenses of a skilled witness, apart from an express undertaking to make himself so liable, retained by him for qualifying himself to give evidence as an expert. The mere fact that the attorney has employed the witness in such a way, and that in the course of the case he has had communications with the witness, that being in the course of his business as an attorney, is no evidence of an undertaking to make himself personally liable. Chief Baron Pollock, in delivering judgment, says: "It is clear the defendant would not have been liable had he merely subpoenaed the plaintiff, and can it make any difference that the plaintiff attends with his subpoena having already surveyed the premises? . . . We think not. Having been communicated with, and made an engagement to appear as a witness, it was his duty to qualify himself to give evidence." In Fendall v. Nokes (7 Scott, 647) it was held that the mere circumstance of an attorney being attorney in the cause will not make him responsible to a coffee-house keeper for refreshments supplied to witnesses who were attending the trial. But the fact of his being found in communication with the witnesses at the coffee-house was held to be some evidence to go to the jury that he sanctioned what was supplied.

The following was a case where the attorney was held to be personally liable. He had subpoenaed a witness in a cause in which he was attorney, and before the witness went to the court he asked him who would pay him, and the attorney said he would. After the hearing of the case, in which the witness was examined, the attorney's clerk, at the attorney's direction, gave him an IO U for the amount of his expenses and loss of time, which amount the attorney received, after the costs in the canse had been taxed, from the other side. Here the witness recovered the amount from the attorney himself: (Evans v. Philpotts, 9 C. & P. 270).

In the case which raised the principle as to the liability of solicitors personally to pay the expenses, it will be remembered, as stated above, that the County Court judge held that the solicitors, although they received the costs, only did so on behalf of their client, and were not personally liable. This seems abundantly clear, for in Hood-Barrs v. Heriot (74 L. T. Rep. 372) it was held that a solicitor who has received payment of costs payable to his client under an order of the court, although with knowledge that an appeal is pending, on the reversal of such an order cannot be compelled personally to repay the costs so paid to him in the absence of any misconduct or undertaking to do so on his part. In Ireland the law seems to be different, for in Fitzmaurice v. Jordan (32 L. Rep. Ir. 112) the Irish Court of Appeal have under circumstances similar to those in Hood-Barrs v. Heriot (sup.) ordered a solicitor to repay costs. However. although that case was before the Court of Appeal in the English case, they declined to follow it, on the ground that the Irish Court gave no satisfactory reason for making such an order.

EXTENSION OF PATENTS TO ASSIGNEES. THERE are many difficulties in the way of those desirous of obtaining a prolongation of the benefits conferred upon them by the grant of letters patent. It is by no means a simple matter when the inventor and patentee is making the attempt, but the difficulties are considerably increased when the petitioners are only importers or assignees. The reason for this, of course, is based on the consideration that the inventor has merits which are worthy of reward, at any rate when the subject of the patent dealt

with has proved itself beneficial to the public, whereas in general these factors are not present in the case of importers or assignees, except under certain circumstances to which allusion will be presently made.

Before the year 1835 there was no machinery available to prolong the life of a patent except that afforded by means of passing a special Act of Parliament. Notwithstanding the special awkwardness of this procedure, so many applications came up for the privilege that legislation on the point was felt to be imperatively necessary. To deal with this point among others Lord Brougham's Act (5 & 6 Will. 4, c. 83) was passed in 1835, whereby it was provided in sect. 4 that: "Any person who now hath or shall hereafter obtain any letters patent, as grantee, assignee, or otherwise," could petition the Crown in Council, after conforming to the provisions as to advertisement therein mentioned, "for the prolongation of his term of sole using and vending his invention." The system of caveat was open to objectors, and reference by the Crown to the Judicial Committee of the Privy Council was also indicated and, provided that the application be prosecuted with effect before the expiration of the term originally granted in the letters patent, the Judicial Committee were empowered to report in favour of an extension for a period not exceeding seven years. Four years subsequently, in 1839, the provision with regard to applications being "prosecuted with effect" was repealed by 2 & 3 Vict. c. 67, on the ground that cases had cropped up in which the parties had been unable through uncontrollable causes to comply with the provision; accordingly, by sect. 2, in such cases the Judicial Committee was empowered to report in favour of an extension in spite of the lapse of time. The case occasioning this legislation was Bodmer's Patent (2 Moo. P. C. 471), where the petitioner used all endeavours to bring up his case within the allotted time, but, owing to the entry of caveats, a delay was caused, and on a subsequent day it was impossible to form a court. When the case was eventually heard objection was taken on the score of lapse of time, and Lord Brougham felt bound to uphold it. After the section had been repealed another application was made and an extension granted for seven years. In the place of the repealed section it was provided that no extension should be granted unless the petition had been presented (as regards petitions subsequent to the 30th Nov. 1839) at least six months before the expiration of the term and explanation of a satisfactory character given to the Judicial Committee to account for the omission to prosecute with effect the petition before the expiration of the term. Sect. 25 of the Patents, Designs, and Trade Marks Act 1883 retains the requirement as to presentation six months before expiry of the patent, and enlarges the power of extension in exceptional cases to a period of fourteen years. Mr. Lewis Edmunds, Q.C., in his work on Patents (p. 378) adverts to the fact that sect. 25 is in a state of suspended animation until 1898, inasmuch as patents dating prior to 1883 are dealt with under the earlier Act by virtue of sect. 113 of the statute of 1883, and there can be no petition for prolongation of a patent granted under the last-named Act until 1898.

On many occasions attempts have been made by assignees to obtain the sanction of the Judicial Committee to a prolongation of their rights and with varying success. Successful petitions are instanced in the case of Wright's Patent (1 Webs. P. C. 561); Whitehouse's Patent (Ib. p. 473) : and unsuccessful ones may be cited in the cases of Morgan's Patent (Ib. p. 737); Norton's Patent (1 Moo. P. C. N. S. 339); and Pitman's Patent (8 Moo. P. C. N. S. 297). In Norton's Patent (sup) the inventor had assigned his patent for £400, but no efforts were made for some ten years to make any commercial success out of it until a company was formed to work it in conjunction with other patents founded upon it. The patentee died, and the assignee petitioned the Privy Council for an extension. Lord Romilly, in giving judgment, points out upon what basis the Judicial Committee acts in deciding upon petitions for prolongation. He said: "The grounds upon which their Lordships grant extensions of patents all have reference to the inventor himself. They are, in the first place, to reward the inventor for the peculiar ability and industry he has exercised in making the discovery; in the second place, to reward him because some great benefit of an unusual description has by him been conferred on the public through the invention itself; or lastly, because the inventor has not been sufficiently remunerated by the profits derived from his strenuous, exertions to make the invention profitable." In this case, however the patentee was not the petitioner, but the circumstance that an assignee who was applying to the court called for the following dicta: "It must always be borne in mind that the assignee of a patent does not, unless under peculiar circumstances, apply on the same favourable footing that the original inventor does. The ground that the merits of the inventor ought to be properly rewarded, in dealing with an invention which has proved useful and beneficial to the public, does not exist in the case of an assignee, unless the assignee has assisted the patentee with funds to enable him to perfect and bring out his invention, and has thus enabled him to bring it into use, none of which grounds exist in the present case." In addition to the point thus emphasised, Norton's case was one where the petitioner was a joint-stock company. This increased the difficulty still more. Lord Langdale, in the Electric Telegraph Company case (not reported, but cited in Goodeve's Patent Cases," p. 554), indicates the reason, viz., that companies buy up patents as commercial investments, and for the profit, not of the inventors, but of their own shareholders, although incidentally such a transaction does undoubtedly benefit the inventor. This secondary form of benefit received due consideration in Morgan's Patent (sup.), where Lord Brougham remarked that, "if the assignee is not remunerated at all, it might be said that the chance of the patentee of making an advantageous conveyance to the assignee would be materially diminished, and consequently his interest damnified."

it was

In order to secure directly his interests, the Judicial Committee frequently makes it a condition of acceding to the petition that the assignee should further remunerate the inventor. In Whitehouse's case

(sup.) this was done, and the assignee undertook to pay the inventor an annuity of £500 during the period of the patent. In Hardy's Patent (6 Moo. P.C. 441) the patentee having made a loss, and the assignee a profit, extension was only granted on the terms of paying the former a sum down and an annuity of £1000 during the extended period. Again, in the public interests, conditions are imposed as to the price of sale of the patented article. Hardy's Patent is also an instance of this being enjoined. The invention related to improvements in the manufacture of railway carriage axles, and it was directed that the price should be arranged in proportion to the price of iron. The assignee in this case was dealt with strictly, but such treatment is only forthcoming when "the inventors and patentees have made nothing by their invention; per Lord Brougham in Bodmer's Patent (6 Moo. P. C. 468). The general principle underlying all the successful applications is thus summed up at p. 385 of Mr. Edmunds's work (sup.): They all "can be justified by reference to one or other of the principles stated . . the benefit of the public, and the benefit of the inventor." Quite recently the Judicial Committee has had to consider these principles in the case of Hopkinson's Patent (as yet unreported), where a petition for prolongation was advanced by the inventor and assignees, but was refused. It appeared that the inventor had made small profits out of his discovery, and had subsequently sold his interest to the assignees, a company, for a sum approaching £20,000. The company had not made any profits, and they prayed for a prolongation on this ground, and also that they stood in the position of persons who had assisted the inventors on the lines indicated in the Morgan case (sup.). Lord Hobhouse, in his judgment, laid it down again that company-assignees were not to be too favourably treated, inasmuch as their purchase is purely commercial, and that as regards assignees in general it was not open to them to buy up a patent when moribund, and then pray for extension on the footing that they had made no profits. This decision is quite in accordance with Re Bowen-Barff's Patent (73 L. T. Rep. 36; (1895) A. C. 675), where a company-assignee failed in their petition for prolongation, and the rule was laid down that no assignee could obtain this grace unless his inventor would himself have been entitled to it, and will himself benefit from it. It follows from the above cases that the path of the assignee of a patent, who desires a prolongation, is a thorny one, and the more so if such assignee be a company. The extension is granted out of favour to inventors, either to reward them for their ability, or for the benefit they have given to the public, or if they have not received sufficient remuneration. These points cannot weigh in the case of assignees, unless in the rarer cases where, either by providing funds or in some analogous way, they have actively assisted the inventor and contributed to the production of the patent. It is presumed that this would also be a great point in favour of a company-assignee, but these occasions would be of infrequent Occurrence. It is clear now that, where the patentee has been fully remunerated or is dead, an assignee has no claim for indulgence, and that, where the facts are such as to make the application successful, the Judicial Committee will look fully into the facts and put the applicants under conditions favourable to the interests of the inventor and public alike.

PUBLIC HEALTH ACTS AMENDMENT ACT 1890, s. 19. It was pointed out by the present writer in the LAW TIMES of the 18th July 1896, that sect. 19 of the above Act had given rise to a difficulty of interpretation which at that time was unsolved. Since the date when that article was written the Divisional Court has, in the cases of Bradford v. The Mayor of Eastbourne (74 L. T. Rep. 762; (1896) 2 Q. B. 205) (which was referred to in a postscript to that article) and Reg. v. Mayor of Hastings (74 L. T. Rep. 377), supplied a solution.

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The difficulty there pointed out was as follows: By sect. 4 of the Act of 1875 only pipes which drain a single house are drains : every other pipe, i.e., every pipe which drains more than one house is a sewer. Sect. 41 of the same Act enables the local authority, upon receipt of written application stating that any drain is a nuisance, or injurious to health, to examine such drain, and, if the same be in bad condition, to give such private owner notice in writing requiring him to do the necessary works; and, upon default by the private owner, to execute the works, and recover the expenses summarily from the owner. The Amendment Act 1890, s. 19, enables the local authority to proceed under sect. 41 of the 1875 Act in the case of "single private drains" from "two or more houses belonging to different owners: and "for the purposes of this section the expression 'drain' includes a drain used for the drainage of more than one building (sub-sect. 3). It will be well to continue with the words of that article (LAW TIMES, July 18, p. 272): "The apparent object of sect. 19 is to extend the procedure of sect. 41 of the 1875 Act to the case of certain drainage pipes to which that procedure was not before applicable, i.e., to certain pipes which were not drains. But since every pipe, which is not a drain, is, by the definition in sect. 4 of the 1875 Act, and sect. 11 of the 1890 Act, a sewer, this section applies to sewers the procedure applicable only to drains; and accordingly a difficulty arose, upon the adoption of Part 3 of the 1890 Act by local authorities, which may be stated in the form of a dilemma. Either (a) the single private drain of sect. 19 is the same as the drain of sect. 4 of the 1875 Act, and then sect. 19 gives the local authority no new powers whatever; or (b) the single private drain of sect. 19 is different to the drain of sect. 4 of the Act of 1875, and then it is a sewer vested in the local authority, repairable by the local authority and not by the private owner; and this section gives the local authority power to compel the private owner to repair a drainage pipe, for the non-repair of which he can also sue the local authority.

Self v. The Hove Commissioners (72 L. T. Rep. 234; (1895) 1 Q. B. 685) decided that a local authority was entitled to proceed under sect. 41 of the

Act of 1875, in respect of a pipe draining two or more houses belonging to different owners, by virtue of sect. 19 of the Act of 1890. Hill v. Hair (72 L. T. Rep. 629; (1895) 1 Q. B. 910) (the question of ownership being immaterial to the local Act in question) decided the reverse; at least, in respect of all drainage pipes of the kind in question, made before the adoption of Part 3 of the 1890 Act. The judgment in the latter case was upon the ground that such a pipe was a sewer, and, as such, repairable not by the private owner, but by the local authority.

The two cases decided by the Divisional Court during the last six months have adopted as the solution of the difficulty a middle course-practically the second alternative of the dilemma suggested in the above quota. tion from the LAW TIMES of the 18th July, p. 272. In Bradford v. Mayor of Eastbourne (ubi sup.) a drainage pipe of the kind which has caused the difficulty, viz., a pipe running through private property, and carrying the drainage of two or more houses belonging to different owners, became a nuisance. The local authority gave notice under sect. 41 of the Act of 1875 in accordance with sect. 19 of the Act of 1890 (Part 3 of which they had adopted), and, upon default by the owner, executed the works. They then sued for the expenses. Held, that they were entitled to recover, per Lord Russell, C.J. at p. 210: "But it might be said that the drain in this case was not a drain at all, because it came under the definition of sewer in sect. 4 of the Act of 1875, and in sect. 2. of the Act of 1848. But the Act of 1890, for the purposes of sect. 19, and for those purposes only, widens the definition of drain' contained in sect. 4 of the Act of 1875. And therefore there seems to be no difficulty in interpreting sect. 19 with regard to the word drain.' Per Wills, J. at p. 214: "The section, therefore, seems to me to say in terms, that the definition of drain in the Public Health Act of 1875 is not to prevent the words of the section from receiving their natural interpretation; and that, for the purposes of that section, and of that section only, the definition of drain' in the Act of 1875 shall be qualified in the manner and to the extent pointed out in sub-sect. 3. I do not apprehend, therefore, that the use of the expression, private drain connecting two or more houses with the public sewer,' effects any change in the ownership of the conduit which serves two houses, or prevents it from being, for any other purposes than those covered by sect. 19, a sewer, and not a drain. But for the purposes of this section, I cannot see why there is any difficulty in giving to the language used its natural meaning, and saying that in such a case as the present the section is directly applicable, and does, so far as proceedings under sect. 41 of the Act of 1875 are concerned, and to that extent and in that case only, alter the incidence of the cost of executing the necessary works contemplated by that section, and throw them upon the owner."

.

It was further decided in this case that sect. 19 of the Act of 1890 is retrospective, and includes all sewers which come within the meaning of the section, whether they were made before or after the adoption of Part 3 of the Act by the local authority. One ground of this decision was, that for the purposes of the section the local authority might be considered divested" of the sewer in question, even though the section contains no explicit enactment to that effect. This point was raised in argument by reason of Hill v. Hair, but it is submitted that it was not really necessary to the decision of the case. For, as held by Mr. Justice Wills, and explained more fully by Mr. Justice Wright in the case of Reg. v. Mayor of Hastings, the pipe remains vested in the local authority as a "sewer," and is only treated as a "drain" by virtue of sect. 19 of the Act of 1890. In Reg. v. Mayor of Hastings there was a similar pipe running through private property, and draining more than one house. The ownership of the houses was immaterial, as the matter was controlled by a private Act (similar to that in Hill v. Hair) omitting the provision belonging to different owners" of sect. 19 of the Act of 1890, and the point of ownership was not raised. A nuisance arose, and the owner sought to compel the local authority to repair. The local authority refused, and the owners claimed the right to mandamus. Held, that a mandamus issue. Per Mr. Justice Wright (after doubting whether mandamus was the proper remedy): "The corporation were bound to repair sewers which were within the definition of the Act of 1875. If it had been intended to relieve them of that liability very different language would have been used. They were still bound to repair such sewers as these. do this was left untouched by the Act of 1890.

Their general liability to But a very large measure

of relief was afforded them by sect. 19 of that Act, which made applicable to sewers of this description the provisions applicable to drains--namely, that, in case of a nuisance being duly complained of, they might enter on the premises, open the ground, and if the condition of affairs was found to be very bad they might put them right and charge the owner with the expense. That applied only were there was an actual nuisance. The general duty of the local authority was not taken away from them."

The combined effect of these two cases is therefore as follows: (1) All sewers remain sewers, according to the definition of sect. 4 of the Act of 1875, and are not "divested" from the local authority by sect. 19 of the Act of 1890. (2) Certain pipes draining two or more houses belonging to different owners, of a description which is now well known, whilst remain. ing sewers, may be treated by the local authority as if they were drains, under sect. 41 of the 1875 Act, by virtue of sect. 19 of the Act of 1890. (3) If the local authority does not proceed under sect. 41 of the 1875 Act all the remedies of the private owner in respect of a sewer are left open to him, and the local authority cannot set up as a defence their right to proceed under sect. 41. (4) Self v. Hove Commissioners (ubi sup.) will be good law, and Hill v. Hair (ubi sup.) will be bad law; but subject always to the conditions of (3).

The moral seems to be that the advantage is with that party who first seeks to put in force his remedy. But it is a strange anomaly, that "the local authority should have power to compel the private owner to repair a drainage pipe for the non-repair of which he can also sue the local authority." Liverpool. LESLIE F. SCOTT.

COMMENTS ON CASES.

THE aphorism that what is most obvious is frequently that latest seen is illustrated by the tardy discovery of a flaw in one of the precedents in Seton. In the addenda at p. 2142 is the frame of an order whereby credit is given for a sum certain in respect of rents and profits in a receiver's hands, in order to avoid opening a foreclosure. The form was first drafted by Mr. Justice Kekewich, and applied by him in May 1893 in Barber v. Jeckells (1893) W. N. 91). Again, in 1894, the clause was before the same learned judge: (Lusk v. Sebright, 97 L. T. 269). Mr. Justice Stirling detected no flaw in Blaiberg v. Gatti (100 L. T. 441), nor did Mr. Justice Chitty in Christy v. Godwin (30 Sol. J. 10). As it stands, the precedent provides for the mortgagees giving credit for "such sum, if any, as the plaintiff shall submit to be charged with in respect of rents and profits in the receiver's hands at the date of the chief clerk's certificate, or to come into his hands prior to the order for foreclosure absolute. Mr. Justice North, in Simmons v. Blandy (1896) W. N. 171-7), pointed out the error. The plaintiff should be charged with the amount in the receiver's hands at the date of the certificate, and not merely the sum he submitted to be accountable for. He might submit to be charged nothing, and then, if nothing came to the receiver's hands after the date of the certificate, the mortgagee would get the whole of the rents and interest up to the date fixed for foreclosure absolute. Mr. Justice North amended the precedent thus: The deduction is to be for "what, if anything, the plaintiff shall have recovered under the aforesaid judgment and also what, if anything, shall have been paid into court by such receiver as aforesaid, or shall be in his hands at the date of the chief clerk's certificate, [the following was added by leave] and such a sum as the plaintiff shall submit to be charged with in respect of moneys coming into the hands of the receiver prior to the order for foreclosure absolute."

THE decision in Reg. v. Soden (noted ante, p. 183) involves a startling principle for the interpretation of statutes. By sect. 28, sub-sects. 9, 10, and 11, of the Parliamentary and Municipal Registration Act 1878, if the name of a person placed on the Occupiers List be objected to by any person other than an overseer the name is to be retained, unless primô, facie proof of the grounds of objection be given; and if such proof be given, rebutting evidence may be called to support the voter's claim. In this case, on the last day advertised for the sitting of the Revision Court for hearing claims and objections, no evidence had been offered in support of an objection by a person other than an overseer. The lists were then declared closed. On the next day the revising barrister heard primâ facie proof of the grounds of objection, but declined to receive rebutting evidence, alleging that it should have been tendered before the lists were closed-i.e., before prima facie proof had been given, and therefore rebutting evidence was admissible. The revising barrister having refused to state a case, a rule nisi had been obtained calling on him to show cause why he should not do so. Counsel for the applicant urged an apparently unanswerable dilemma. Either the lists were closed before prima facie evidence was heard, and in its absence the voter's name should have been retained; or they were not closed, and therefore rebutting evidence was admissible. The Divisional Court, without attempting to answer the argument, discharged the rule on the ground that the revising barrister's practice was convenient and reasonable. It may be a saving of time, and be reasonable and convenient, to employ the methods of a default summons in dealing with objections to votes, but such are not the methods prescribed by the Act, and to give a revising barrister a dispensing power which may deprive a voter of the franchise is a strong exercise of judicial authority. The statutory provisions may be burdensome, but "the court has nothing to do with the question whether the Legislature has committed an absurdity." Possibly the decision was influenced by a failure to comprehend fully the distinction between a claimant to a vote and a voter already on the list; for during the argument the Court expressed the opinion that the case was governed by the previous case of Reg. v. Soden (74 L. T. Rep. 520; (1896) 1 Q. B. 499), which dealt with claimants.

A WATER rate is defined by sect. 3 of the Waterworks Clauses Act 1847 as including "any rent, reward, or payment to be made to the undertakers for a supply of water." Where a lessor had agreed to pay the "water rate of premises comprised in a lease, she sought to escape her liability on the score that this included only a domestic water rate assessed in the usual manner, and not an increased sum payable owing to the lessees being refreshment purveyors and requiring a larger supply; which sum was determined by contract between the lessees and the water company, over which she had no control. Mr. Justice Kekewich, in Floyd v. Lyons and Co. (noted ante, p. 181), has held that both conditions of supply are rates within the very general and sweeping terms of the definition. The lessor was quite awake to the fact that the lessees were not ordinary tenants, as the lease explicitly permitted their business to be conducted without being regarded as a noisome or obnoxious trade," as to which there were safeguarding covenants.

"A CONTRACT to contract is nothing," says Sir Edward Fry, at p. 167 of the third edition of his work on 'Specific Performance," for contracts are often incapable of being enforced because some matter is reserved for future agreements. On this footing, in Simpson v. Hughes (noted ante, p. 182), specific performance of a contract was resisted because the date of completion was unspecified. This had been successfully urged in May v. Thomson (47 L. T. Rep. 295; 20 Ch. Div. 705), where a medical man was purchasing a brother doctor's practice. But in the recent case Mr.

Justice Romer had to deal with the more commonplace subject of a contract as to a freehold house, and he came to the conclusion that the letters, so far as they went, showed a valid contract, and that a request for information as to the period of completion was merely a courteous way of asking the vendor when he desired it to take place. He therefore held the contract was binding.

OCCASIONAL NOTES.

The Bar Council will meet again on Monday, the 18th inst.

Lord Russell of Killowen presided on Wednesday at a dinner of the Castleknock College Union, held in Dublin.

"Mr. Justice Wills" is the eleventh article of a series on Our Judges and Famous Lawyers now appearing in Lloyd's Weekly Newspaper. The late Mr. Michael Abrahams, solicitor, of Old Jewry, has left personal estate valued at £71,903 14s. 10d.

A movement is on foot by the Harwich Town Council in favour of dividing Harwich and Dovercourt into wards.

The Master of the Temple will be absent from town during the next three months. Dr. Ainger is to-day to replace Archdeacon Robeson as canon-in-residence at Bristol Cathedral, where he will be on duty until the 1st April.

Mr. M'Intyre, Assistant District Attorney, has sailed from New York for England on board the Cunard line steamer Campania, to conduct the defence of Ivory, alias Bell, who has been committed for trial owing to his alleged complicity in the dynamite conspiracy.

annum.

The Essex County Council has appointed Mr. C. Edgar Lewis, solicitor, of Billericay, Essex, as coroner of West Essex (exclusive of West Ham Borough), in succession to his deceased father, Mr. C. Carne Lewis, on the understanding that he resigns the office next July and that the district be divided into two coroner's districts, each coroner to receive £250 per Until July Mr. Lewis will receive the salary paid to his father. His Honour Judge Camille Felix Desiré Caillard has resigned, owing to ill-health, the judgeship of County Courts of Bath and District (Circuit 52), which he has held since April 1859. His Honour was born in 1822, and was called to the Bar at the Inner Temple in 1845. The resignation is to take effect from the 7th inst. His Honour is lying dangerously ill at Weymouth.

The County Court judgeship of Bath, to be vacated by the resignation of Judge Caillard, has been offered to Mr. William Dundas Gardiner. Judge Caillard's tenure of office has been longer than that of any living County Court judge, and covers a period of nearly thirty-eight years. Both he and Mr. Commissioner Kerr, of the City of London Court, were appointed in 1859, the year in which Mr. Gardiner was called to the Bar at Lincoln's-inn, but Judge Caillard is senior by two months.

Mr. Robert B. Woodburn, deputy registrar, Liverpool County Court, died on the 31st ult., at his residence in Egremont. During the more than thirty years' tenure of office in that court Mr. Woodburn has been the witness of many changes in the personnel of the staff, the presiding judges, and the jurisdiction of the tribunal. He served under judges Hulton, Serjeant Wheeler, Blair, Thompson, Collier, and Shand, and Registrars Henry Hime, Watson, Thomas Bellringer, and Cooper.

Mr. Edmund Charles Tennyson D'Eyncourt, who has just been appointed a metropolitan police magistrate, in the room of Mr. R. Milnes Newton, resigned, bears a name that is familiar to Londoners. For nearly forty years his father, who died as recently as last month, administered justice at the Westminster Police-court. The new magistrate is a comparatively young man, and was called to the Bar at Lincoln's-inn in 1881. He has long been in regular practice on the South-Eastern Circuit and in the Lord Mayor's Court.

The January Quarter Sessions of the Peace for the County of London were commenced on Tuesday at Clerkenwell. Some sixty persons' names appear in the list, two of whom only are awaiting sentence from the last session in the old year. Seven prisoners are involved in one case, there are several charges of wounding, and some indictments for assaulting children of tender years. In addition to the ordinary cases of burglary, theft, &c., there are alleged offences of procuring, exposing, and selling indecent photographs.

The Law Courts will be reopened for the Hilary Sittings on Monday, and these sittings will continue up to Wednesday, the 14th April inclusive, and are the longest of the four sittings of the legal year. As several of the judges of the Queen's Bench Division will be absent at the winter assizes from time to time the sittings in that division will be considerably interrupted, but in the two Appeal Courts, the Chancery Division, and the Probate, Divorce, and Admiralty Division, the business will be carried on continuously.

There have been amateur theatricals at Arlington Manor, the country seat of Sir Francis and Lady Jeune. "Freezing a Mother-in-Law" was the piece, and in it Sir Herbert Stephen, Lord Kilmarnock, and Lady Jeune sustained characters. The acting manager was Mr. Francis Jeune. The furniture and appointments were by the Countess of Bantry and the Viscount Llandaff; consulting engineer, Captain Lord Charles Beresford, R.N., C.B.; costumiers, Mr. Henry Allhusen, Mr. W. H. Mallock, and Miss Kate Greenaway; floral decorations arranged by Julia Marchioness of Tweeddale and Lady Charles Beresford. The "business manager" is gravely described in the bill in the orthodox way-he was the Right Hon. Sir Francis Jeune.