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TWENTY YEARS HENCE;
-a work by Maitland on Pollock, edited by Snow after the style of Doe on the demise of Roe and a Third Party brought in on a summons for directions ?” “Ho! ho! ho! You're a funny boy."
Well, sir, here's your bottle of port. It was rescued from the cellars of an Inn of Court when the Legal University was founded.
“Ha! the vintage is familiar. I live again-in the past, I fear-in the past. Am I really awake ?”
“ The bell rings. The Lord Chief Jastice is beginning to sum up in Special Jury Court No. 1. The counsel engaged in the next case know it's time to go into court.”
" What the devil do you mean, sir ? Who rings the bell ? What business is it of anybody when or where the next case will come on ? • Have they become so d-d methodical all of a sudden ?"
“Ha! the Courts were all in a lump in your time, and went anyhow, so they say in Inderwick's records of the Diamond Jubilee. Now, here are six courts of Nisi Prius always sitting with their own lists. This began with the Commercial Court. That was the Dawn of Common Sense in the History of the English Law.”
"Ah! Collins was the arbitrator, wasn't he? He and Herschell sat for eighteen months on a single boundary dispute. You wouldn't call that expedition, I suppose, in these go-ahead times."
“ Take another glass-you are rather mixed. Collins did so well in the Venezuela business, that he now sits alone on appeal from the House of Lords. Forgive me, sir, I joke. But he's up high ; I'll show him you some other day.”
“ Take me to the Law Institution ; show me a solicitor. Let us be practical."
The Law Institution is now only the Solicitors' Club, and rivals the Bar Club in splendour. Barristers and solicitors are all educated at the Legal University.”
“Aren't the Inns of Court jolly jealous ?”
“Yes ; the Court of Appeal has risen for lunch. Snobbins, Q. C. can now go to sleep comfortably for a quarter of an hour.”
“ 'Pon my soul—this is uncommon convenient. What's that chap doing ?
“Oh that's the telephone. Jones's clerk is telling him that he's wanted at chambers. Look, he's off like greased lightning.”
“ And how's business ?
“ Well you see I'm only a student; but I hear that, after they altered the circuit system, had County Criminal Courts and grouped the towns for civil business, and paid nothing for judges' expenses, there are so many judges in town that there are no arrears, cases are rarely remitted to referees or County Courts, and there is a constant flow of business because everybody knows where he is."
“ And is the House of Lords on better terms than they used to be with the Court of Appeal ?”
*They say so. Since the disappearance of the Female Litigant the Court of Appeal has very much improved. She used to make the judges laugh and they lost their sobriety and got overruled awfully. That was when I was quite a baby.”
“ Call me a motor cab, there's a dear fellow. Come and dine with me at the Temple on guest night. Don't forget.”
“ The man's mad. Poor chap. Some litigant, I suppose, ruined before the Dawn of Common Sense. Ha! There goes the Dean.”
THE LEGAL RIP VAN WINKLE. [LEX JUNIOR went to sleep in Gray's Inn Square on Saturday, Feb. 13,
1897. He awoke on Feb. 13, 1917.] I heard the roar of Holborn. The rooks were cawing in the trees. I went into the street. There was not a horse to be seen. A ceaseless traffic of motor vehicles, with automatic drivers, The pavements were gone-substitutes, side tracks for bicycles, ridden by everybody.
Whish! Past me goes a grave-looking middle-aged gentleman in spectacles. His face was known to me. Surely Jones, of Oriel, who was called with me. A policeman moved silently past me on noiseless motor skates.
“Hi,” I exclaimed; "did you see that grave-looking gentleman in spectacles on a bicycle ?”
He signified the affirmative. 66 Who is he?” .“ Dean of the Legal University.” Before I could reflect A B 700 was slowly proceeding up Ludgate-bill. “ Dean of the Legal University! The man's mad.” Approaching me on his feet was a student-evidently a student. “Could you kindly direct me to the Council of Legal Education ? " “ Senate you mean." “No, no ; Council of Legal Education." "Never heard of it." “How old are you?” “Twenty-one.” * Where do you study ? "At the Legal University.”
“My dear boy, take me round. Something has happened. Where am I?"
“This is where Middle Temple-lane used to be - I believe, in the reign of Elizabeth. There were four Inns of Court then, and many generations of lawyers regularly dined in them for some three hundred years. They got sick of it just when I was born. Middle Temple Hall is now the Senate House of the Legal University. The Inner Temple has been converted into lecture-halls and class-rooms. Lincoln's-inn is the House of the Judges-active and retired. For the first time in England (80 we are told), they began to teach law when I was five.”
“But where do you dine ?” “Dine?”
“Yes; on Grand Days, Readers' Feasts, Parliament nights, all through Term-where the deuce do you dine?”
"I generally dine at home, or at the Bar Club.” “And where do the Benchers dine?" “ Benchers ?! “Yes; Benchers." “How old are you? You look pretty sleepy for this go-ahead time. We have a legend about them. They were the members of a Guild dating from even before Elizabeth—a Secret Society, with a High Priest. Revels, .and the Expansion of the Forensic Diaphragm by means of Readers' Feasts, Guest Nights, and Grand Days formed the leading objects of the Cult. You will find this recorded in Pope's (Q.C.) Essay on Legal Man. For centuries Divided, they became Unanimous, shed their Dead Limbs, merged their Funds, became Vitalised and Homogeneous, and now sit like one Whole Man in Convocation, instead of a Body dragged into sections by Four Legs, all affected by a kind of locomotorataxis. No longer so many stomachs in scattered Communities having rival interests, there is the reign of Mind in a Single Governing Body. You look bewildered.
“Oh Lord! Why, I got a ripping feed, with a bottle of wine every day, for a couple of bob.
“The deuce you did. Who paid for it?"
“My young friend, I never asked unnecessary questions. But show me round."
“Where would you like to go ? ”.
“Why, what's up ? Where's the Female Litigant? Where's HoodBarrs and Mrs. Thompson ?"
“Hush, hush! A legal argument is going on. The voice you hear is the voice of counsel. No litigants in person are heard, and the judges very rarely ask questions.
"Where can I get a glass of sherry and a biscuit? I feel quite faint. Everything is so novel—so unusual."
“ The Bar Club's outside-just across the hall. They raised the floor of the hall in 1900 to the level of the courts ; just after the Bar Club was built. You cross the ball and there's the club."
“ Club! Never heard of it.”
“A jolly place I can tell you. A splendid restaurant open all day ; large reading and writing room, where barristers meet like they do in the King's Inn Library in Dublin ; a fine council chamber for the Bar Council ; billiard and smoking rooms and large library of miscellaneous literature ; a beautiful chamber for the Hardwicke Debating Society, which holds periodical moots as well as debates; and excellent rooms for the Barristers' Benevolent Fund, which now amounts to £50,000. But here's your glass of sherry."
“ Order me a bottle ; port please-old port. I want support. Bring me the White Book and the Yearly County Court Practice--something substantial and familiar.”
“ You are raving, sir. I know the legend çf the White Book. It was a Holocaust of Dead Litigants. Was it not a survival of the Middle Ages
THE POSITION OF LICENSEES. THERE are probably at the present time many thousands of people exercising rights over land under some agreoment or understanding with the owner of it, (usually in consideration of the payment of a periodical sum to such owner), who, devoutly believing themselves to be tenants of the owner of the land, are in reality not tenants, but licensees only. This is obviously a distinction of great practical importance, involving as it does, among other differences, the freedom of the licensee from distress by the owner of the land ; and, on the other band, rendering him liable to be turned out of occupation at little or no notice. An analysis of his position may therefore be of use and interest. It will be found that the law on the subject, though intricate, is on the whole fairly clear ; but that there is often the greatest difficulty in deciding whether or not, upon the facts disclosed, a man is a licensee or a tenant.
The normal case in which a man who, not being the tenant of another, has nevertheless a right, which he can assert against all the world, to go upon that other's land, is by reason of his possession of an easement over that land. In other words, he, as the owner of a dominant tenement, has certain rights appartenant to such dominant tenement over a servient tenement. The position of a licensee must be carefully distinguished from that of the owner of an easement, properly so-called. Again, a mere licence differs from a profit d prendre, inasmuch as it does not enable the licensee to take any profit from the land ; and further differs from both easements and profits d y rendre, in that it is not a hereditament: (Goodeve's Real Property, 3rd edit., p. 331). But there are many personal rights which, in their mode of enjoyment, bear a great resem. blance to easements (being indeed improperly called “ easements in gross”) which may be conferred by actual grant in lependently of the possession of any tenement by the grantee, as, for instance, a right of way. But such rights, though valid between the contracting parties, do not possess the incidents of an easeret: (Gule on Easzmente, 6th edit., p. 11). It is conceived that the grant:e of such an easement is a licensee only.
It is necessary, for the sake of clearne: s, to divide licensees into two
classes, the legal positions of which are quite different. The distinction 593), subject only to this, that he must give reasonable notice where the is explained in the celebrated judgment of Lord Chief Justice Vaughan in nature of the case requires it. “A licence to the plaintiff to put his goods Thomas v. Sorrell (Vaugh. 351) in the following terms : “A licence upon the defendant's land, involves a right to take away the goods, and properly passeth no interest, nor alters or transfers property in anything, have a reasonable time for doing so :” (per Willes, J. in Cornish v. Stubbs, but only makes an action lawful which, without it, had been unlawful. 22 L. T. Rep. 21; L. Rep. 5 C. P. 334, at p. 340 ; Mellor v. Watkins, So a licence to hunt in a man's park, to come into a man's house, are only L. Rep. 9 Q. B. 400; Aldin v. Latimer and Co., 71 L. T. Rep. 119; actions which, without licence, had been unlawful. But a licence to hunt (1894) 2 Ch. 437). in a man's park, and carry away the deer killed to his own use ; to cut A licence is further determined by the death of the licensor (Wakley v. down a tree in a man's ground, and to carry it away the next day after to Froggatt, sup.), and by an assignment of the subject matter in respect his own use, are licences as to the acts of hunting and cutting down the of which the privilege is to be enjoyed : (Coleman v. Foster, 1 H. & N., at tree, but, as to the carrying away the deer killed and the tree cut down, p. 37; Wallis v. Harrison, 4 M. & W. 538). A bare licence cannot be they are grants.” Licences may therefore be divided into, (a) bare assigned: (Re Davis ; Ex parte Rawlings, 60 L. T. Rep. 157; 22 Q. B. Div. licences ; secondly, (b) licences coupled with an interest.
193; Coleman v. Foster, sup.). (a) The most usual instance of a bare licence occurs where a man is The responsibility of a bare licensee for negligence was discussed in let into a qualified, not exclusive, possession of land. In order to consti. Williams v. Jones (11 L. T. Rep. 108; 3 H. & C. 256), and it was decided tute a lease of land the tenant must have exclusive possession of it. If in that case that, where a person occupies a shed under a licence, the only exclusive possession is not given the result is not a tenant but a licensee, duty imposed on him is to take due and reasonable care in the use of the and, as has already been said, great difficulty is often found in deter. shed. And he will not be liable if the shed is burnt down by a negligent mining the true position of the occupant. The Municipal, $c., Company act of his servant outside the scope of his employment, e.g., by lighting V. Metropolitan and District Railway (1 C. & E. 184) affords a good his pipe with a shaving and then dropping the lighted shaving on the illustration of the test which will be applied. In that case the facts floor. were these : Certain premises were demised to a building society for a It remains to consider the remedies of a licensee for any disturbance of term of years. In consideration of an annual payment of £100 to the his enjoyment of the licence. It is quite clear that he cannot sue a third building society the plaintiffs were given the exclusive use of the board person in his own name : (Heap v. Hartley, 61 L. T. Rep, 538; 42 room once or twice a week, and the use of the basement of the premises Ch. Div. 461; Stockport Waterworks Company v. Potter, sup.) The for their accountants jointly with the clerks of the building society. case of Whaley v. Laing (2 H. & N. 476) is not really inconsistent with They further had the exclusive use of a desk in the outer office of the this view. In that case a canal company gave the plaintiffs permission premises, but their work thereat was transacted by a clerk in the to supply their engines and boilers from the water of the canal. The employment of the building society, and a further £100 per annum defendant, without any right so to do, fouled the water, and thereby was paid to the building society for his services. Held, that injured the plaintiffs' engines. In the Court of Exchequer it was held the plaintiffs were not tenants to the building society because their that the plaintiffs were entitled to succeed, not apparently on the ground right to use the board-room was confined to particular persons for of interference with their privilege, but by reason of the injury done to particular purposes at particular times, and that their only right with their property. They were lawfully using the stream, and the defenrespect to the desk was that the clerks should be allowed to do their work dants wrongfully polluted it, thereby damaging the plaintiffs. The there; they had no right to use the desk for any other purpose, or to Exchequer Chamber reversed the decision on à point of pleading : insist on its being used by any other person they chose to send there. (3 H. & N. 675). The joint occupation of the basement was clearly not sufficient to create a As against the licensor the licensee has apparently no remedy, except tenancy. Again, a contract for good consideration to allow another the where he obtained the licence under a contract for good consideration. use of a music-hall and gardens on certain days for the purpose of giving His remedy is in damages for breach of contract. : (Smart v. Jones, concerts and other entertainments therein, but on terms which showed 10 L. T. Rep. 271; 33 L. J. 154, C.P.). It is suggested in Goddard on that exclusive possession of the premises was not to be yielded to him Easements, (5th edit. p. 430) that, where damages would not be appropriate, during those days, did not create a tenancy. And this, though the there may be a right to have the licensor restrained by injunction from agreement between the parties spoke of a letting of the premises, and obstructing the licensee in his enjoyment of the licence, but this seems called the money to be paid a "rent” (Taylor v. Caldwell, 3 B. & S. 832). inconsistent with the revocable nature of a licence as set forth in Wood
So, where a railway company having stables within its premises, v. Leadbitter (sup.). granted permission to a coal owrer to occupy and use a stable (not any (b) Licences coupled with an interest. Here the licence is attached particular stable, though perhaps this point was not of vital importance), to a valid grant and is irrevocable. Profits à prendre are often called but retained power to issue bye-laws for the government of their premises licences of profit (Wickham v. Hawker, 7 M. & W. at p. 79), and generally, it was held that no tenancy of the stables was created, notwith- it is conceived, though the point is not clear, that the grantee of a standing the fact that the railway company did not exercise any control licence coupled with an interest can enforce his rights in the same manner over the stables during the period in question: (London and North- as the grantee of a profit à prendre, and that it would be easier for him Western Railway Company v. Buckmaster, 31 L. T. Rep. 835; L. Rep. to prove that they have been interfered with. Such licences do not, how10 Q. B. 70). In Lord Blackburn's judgment the case put where ever, in any case an int to a lease of land. A licence to a man to take the owner of the theatre gives to persons for a term the sole use for a period of twenty-one years all the ore he might find in a particular of a private box or stall, but never intends to let to them the entire tract of country, at the yearly rent of £25, does not amount to a lease of occupation, and keeps himself the control and occupation of it as part land: (Ward v. Day, 10 L. T. Rep. 578 : 4 B. & S. 337). And where a of the theatre. On appeal the court was equally divided, and the judg. lessor demised a fire-brick manufactory to another for a term, and by the ment of the court below therefore affirmed: (L. Rep. 10 Q. B.), 444. same deed granted power to the lessee to dig fire-clay from under certain In Hancock v. Austin (8 L. T. Rep. 429; 14 C. B. N. S. 634) the facts lands therein described during the same term, it was held that there was were as follows: The plaintiff had hired of the defendant for a weekly no lease of the fire-clay, but only a licence to dig for it, and use so much sum standing and power in a room in a factory for the working of three as was actually raised, and that the licensor could grant as many more of lace machines, the power being conducted to them by means of shafting those licences as he thought fit; provided, of course, that sufficient firewhich it was the defendant's duty to keep in efficient working order. The clay was left for the purposes of the manufactory: (Carr v. Benson, 18 defendant distrained upon the machines, but the distress was held unlawful, L. T. Rep. 696 ; L. Rep. 3 Ch. 524). as there was in fact no demise, but only the grant of a privilege. Rendell A licence coupled with an interest can be assigned : (Muskett v. Hill, v. Roman (9 Times L. Rep. 192) is very similar. In that case a stall was 5 Bing. N. C. 694). let at an exhibition at a weekly “rent,” but was not to be used before 10 a.m., nor after 11 p.m. It was held that this was a mere licence wbich gave no right of distress for the nonpayment of the “rent.” But a bare licensee may be constituted in other ways; e.g. (1) By
DISCRETION OF COUNTY COURT JUDGES TO GRANT attempting to grant an easement or profit á prendre otherwise than by
SUMMONSES OUT OF THEIR DISTRICT. deed (Wood v. Leadbitter, 13 M. & W. 838; Rofiey v. Henderson, 17 For some time past there seems to have been a difference of opinion Q. B. 574). (2) By attempting to annex a new incident to the owner- among County Court judges as to whether or not they had a discretionary ship of land. An instance occurred in Hill v. Tupper (8 L. T. Rep. power to grant or refuse leave for a summons to be issued against a 792; 2 H. & C. 121). An incorporated canal company having by deed defendant who did not reside within the district at the time when prodemised to the plaintiff, for a term, certain land adjoining the canal, and ceedings were commenced in cases where the cause of action arose wholly also the sole and exclusive right or liberty to put or use pleasure boats on or in part within the district. The question turned upon what was the true the canal and let the same for hire, it was there held that as to this meaning of the latter part of the 74th section of the County Courts Act latter right the grant merely operated as a bare licence on the part of the 1888, which provides for the service of process out of the jurisdiction, and grantors, and gave the grantee no right of action in his own name for any is as follows: “Every action or matter may be commenced by leave of infringement; upon the ground that it was not competent to create rights the judge or registrar in the court within the district of which the unconnected with the use and enjoyment of land, and annex them to it so defendant dwelt or carried on business, or with the like leave in the court as to constitute a property in the grantee. See also Stockport Waterworks in the district of which the cause of action or claim wholly or in part Company v. Potter, 3 H. & C. 300, at p. 326. (3) Where a licence is arose.” The question came before his Honour Judge Turner, sitting at annexed to an invalid grant under sach circumstances that, if the grant the Durham County Court at Stockton, who appears to have been strongly had been valid, it would have constituted a licence coupled with an of opinion that a County Court judge ought not to be called upon to use interest : (Wood v. Leadbitter, sup. ; Wakley v. Froggatt, 9 L. T. Rep. his discretion and go into the facts of each case, because a judge or 340; 2 H. & C. 669).
registrar having used his discretion and satisfied himself that the plaintiff It will be convenient now to sum up the main features of a licensee's had a cause of action which could properly be tried in that court had no position. Since he is not a tenant, none of the ordinary relations which further discretionary power vested in him by the section, and was bound exist between landlord and tenant have any application, e.g., distress, to issue the summons. There being no authority on this point the notice to quit. The licensor, whether the licence was granted by deed or learned judge sought advice from the Lord Chancellor, who expressed an not, and whether for valuable consideration or not, can revoke it at any time opinion that the view taken by his Honour was incorrect, the words of the (Wood v. Leadbitter, sup.; Hyde v. Graham, 7 L. T. Rep. 563 ; 1 H. & C. section being merely permissive. To that expression of opinion his
Honour bowed, and for certain reasons not here material exercised his discretion and refused leave for the summons to issue. A rule was then obtained nominally on behalf of the plaintiff, directed to the learned judge to show canse why a summons should not issue, and the rule was argued a short time back, Mr. H. Sutton being instructed by the Treasury to show cause. In doing so, the learned counsel submitted that it was a condition precedent to the County Court exercising a discretion that the cause of action should arise within the district, as otherwise the judge had no jurisdiction. Having satisfied himself, however, that he had that jurisdiction, then it was for him to say in the exercise of his discretion whether the summons ought, on the ground of convenience or otherwise, to be issued. The County Court rule was practically the same as the section, so also was Order XI. of the R. S. C., and therefore it was clear that the framers of the rule considered that the section gave the judge discretion in the matter, and a rule backed by such authority ought not to be slightingly treated as ultra vires by that court. On the other hand, in support of the rule Mr. Scott-Fox submitted that, if the plaintiff by his affidavit showed that he had a proper cause of action, and that it arose wholly or in part within the district, then the judge was bound at once to allow the summons to issue. In statutes words which were only directory, permissive, or enabling, might have a compulsory force when the thing to be done was for the public benefit or in advancement of public justice. That established principle was exceedingly well illustrated in the case of Rex v. The Stewards and Suitors of the Manor of Havering-atte-Bower (5 Barnewall & Alderson, 691), which was a case where the permissive words were in a charter : “By charter the king granted that the steward and suitors of a manor should have power to hold a court for the determination of civil suits, and there had been a non-user of the court for fifty years (except for the purpose of levying fines and suffering recoveries), and it was held that the court being for the public benefit the words of permission in the charter were obligatory, and that the right of determining suits was not lost by the non-user." The section of the County Courts Act, like the charter, was passed for the benefit of the public, and the permissive words must therefore be read as obligatory. The court, however, declined to take that view of the question, and in discharging the rule Mr.Justice Wright said that under the section a rule had been framed which bound the judge and the parties, unless it was ultra vires. The rule he referred to was rule 9A of Order V. of the C. C. Rules 1889, which directs that the judge or registrar shall duly consider the facts disclosed by the affidavit, and exercise his discretion in each case as to the grant or refusal of leave in accordance with the circumstances. Unless, therefore, that rule was bad as going beyond or contravening sect. 74 of the Act, it was clear that the judge must exercise a discretion in each case, and was therefore in no way bound to grant leave for the summons to be issued unless he considered that such leave should be given. Mr. Justice Brace thought that the rule governing this case was admirably expressed in the case of Julius v. The Bishop of Oxford (42 L. T. Rep. 546; 5 App. Cas. 214), and referred to the judgment of Lord Penzance given therein. The whole point for the court to decide was, whether there were any considerations sufficiently cogent to exclude the presumption that the Legislature intended a discretion to be vested in the judge. In his opinion it was clearly intended that there should be such discretion, and it would be putting a very unreasonable construction upon the words of the section to hold otherwise.
(Dicey, Conflict of Laws, 'pp. 318-322). The cases reported upon the latter question were considered nearly analogous to the question before the Court of Appeal in The Smelting Company of Australia v. The Commissioners of Inland Revenue (75 L. T. Rep. 534 ; (1896) W. N. p. 167), where the point was whether an agreement made in England for the sale of a share of a patent with a license to use the patent in the colony of New South Wales, and which was carried out by a colonially stamped assignment, fell within the liability to ad valorem stamp duty imposed by the general words at the commencement of sect. 59, sub-sect. 1, of the Stamp Act 1891 (54 & 55 Vict. c. 39), or within the exception contained in the section. By that section, it will be remembered, “ any contract or agreement made in England
for the sale of any equitable estate or interest in any property whatsoever, or for the sale of any estate or interest in any property except lands, tenements, hereditaments, or heritages, or property locally situate out of the United Kingdom
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.” People who have “ international” transactions may find that they bring themselves within the revenue laws of more than one country in respect of the same transaction, and this proved so to be in the above case, in which the Court of Appeal, affirming the judgment of the Queen's Bench Division (74 L. T. Rep. 694; (1896) 2 Q. B. 179) held that the instrument was chargeable under the head of “ Conveyance on Sale” in the first schedule to the Stamp Act 1891, with duty to a considerable amount. The majority of the learned judges in both courts were content to ground their decision upon the “property" locally situate abroad being of the nature of the lands, &c. mentioned in the first part of the exception, which the subject-matter to this agreement was not; but all were of opinion that, even assuming that some chattels may be regarded as baring a local situation, yet that the incorporeal property comprised in the agreement under consideration could not be “ locally situate” in New South Wales or elsewhere.
The court will intervene and order the solicitor, as an officer of the coart, to pay the costs of an action personally, where such action has been commenced without any proper authority from his client. But after it has come to the client's knowledge that such action has been commenced, and he takes no step to get the proceedings set aside, he will be taken to have ratified the act of the solicitor, and would lose his remedy against him. But not so an infant, for any ratification which might take place would have to be by his next friend (Geiliger v. Gibbs, noted sup. 318), and the fact that he took no steps to remove his name when he had been joined as a co-plaintiff without his knowledge could not be held to be a ratification of what had been done by the solicitors.
In this case (Geiliger v. Gibbs) it was the defendants in the action who asked for the costs, and not a plaintiff ; but it was decided that, whether plaintiff or defendant, the principle was the same as laid down in Fricker v. Van Grutten (1896, 2 Ch. 649). By rule 11 of Order XVI., R.S.C. 1883, no person shall be added as a plaintiff, or as the next friend of a plaintiff, in an action “ without his own consent in writing thereto," and it was held that the consent in writing of his solicitor, though written and signed in his presence, would not be sufficient to bind the client. The practice to be followed, as laid down in that case, is that where a person bas been improperly—that is, without proper authority-made a plaintiff in an action, and orders have without his knowledge been made against him, by which he is liable to pay costs to the defendants, a stay of proceedings will be ordered in his name, and also all proceedings since he was added as plaintiff. The solicitor who wrongly joined him will be condemned to pay
all his client's costs, and also all costs that he has been ordered to pay to the defendants.
COMMENTS ON CASES.
Of the numerous defences raised in the successful appeal of the plaintiff in De la Rochefoucauld v. Boustead (75 L. T. Rep. 502), two are of special interest, viz., those under the Statute of Frauds (sect. 7) and the Statute of Limitations ; but the latter was governed by sect. 25, sub-sect. 2, of the Judicature Act 1873, as to which an alteration of the law applicable has been made by the Trustee Act 1888. The plaintiff claimed a declaration of trust of certain estates in Ceylon purchased by the defendant, and conveyed to him in 1873, which he had with her knowledge mortgaged to his vendors, and, subsequently, as she alleged, in breach of trust to other persons. The Court of Appeal were of opinion, on the evidence in the case, that the trust was “ manifested and proved” sufficiently in writing within the 7th section of the Statute of Frauds : (Foster v. Hale, 3 Ves. 696 ; Smith v. Matthews, 3 De G. & J. 139). Further, that if this had not been so, the court was of opinion, differing from Bartlett v. Pickersgill (1 Ed. 515), in which it was held that even if the defendant is convicted of perjury in denying the character of trustee yet the court had no power to decree the trust, that it would be permitting the statute to be used as a cover for fraud not to admit evidence of the trusteeship of the defendant. In arriving at this conclusion, their Lordships were following the course recently taken by Mr. Justice Stirling in Re The Duke of Marlborough ; Davis v. Whitehead (70 L. T. Rep. 314; (1894) 2 Ch. 133), where the authorities are to be found reviewed in the judgment, and the remarks of James, L.J. in Haigh v. Kaye (26 L. T. Rep. 675; L. Rep. 7 Ch. App. 469), pointing out that the statute does not include resulting trusts or trasts arising from operation of law, are referred to. The recent case also contains an expression of opinion that, having regard to the language of the statute and to the decision in Leroux v. Brown (12 C. B. 801)-& case affected by the provisions of sect. 4 of the Sale of Goods Act 1893there was no objection to the defendant availing himself of the statute in opposition to the proof of a trust alleged of lands situated abroad, although it would have been in the present case ineffectual for that purpose.
The decision of the Court of Appeal in The Mutual Reserve Fund Life Association v. The New York Life Insurance Company and Harvey (75 L. T. Rep. 528), following that of the same court in The Whitwood Chemical Company v. Hardman (€4 L. T. Rep. 716; (1891) 2 Ch. 416) furnishes another instance of the disinclination of our courts to extend the principle of the “negative covenant” case, Lumley v. Wagner (19 L. T. Rep 0. S. 264; 1 De G. M. & G. 604) in cases of contracts for personal service. It was, on behalf of the plaintiffs, endeavoured to extract from the agreement made by them with the defendant Harvey a negative agreement from his undertaking to "act exclusively” for their association in so far as to tender them life risks obtained by him, so to bring the case for an injunction within the older decision. This attempt was unsuccessful, Lord Justice Lindley being reported to have said: “I do not think that it is in accordance with the view taken in this class of case, desirable to extend the principle established thereby, I look upon Lumley v. Wagner and the whole of the cases of that class as rather anomalous," stating further that, before an injunction would be granted, there must be either a definite negative covenant, or one raised by implication showing definitely the exact limits of the injunction which the court is asked to grant.
In the case of the The Mannheim (75 L. T. Rep. 424) the convenient rale of the Admiralty Division is alluded to to the effect that, in the event of a vessel being arrested by the Admiralty process of any country and bailed by her owners, it is regarded as being contrary to good faith that she should be arrested again in another jurisdiction on the same ground. If, instead of putting in bail, a guarantee is given after arrest for payment of the damages sustained, the rule against re-arrest in another country is the same : The Christiansborg, 53 L. T. Rep. 612; 5 Asp. Mar. Law Cas. 491 ; 10 P. Div. 141). In the recent case before Mr. Justice Barnes thore had been no legal proceedings instituted abroad in respect of a collision between the Mannheim and the plaintiffs' vessel, and the guarantee for damages which had been come to between the parties did not, in the opinion
PERSONAL property has no locality : per Lord Loughborough, C.J., in Sill v. Worswick (1 H. Black. 665). Nevertheless exceptionally for purposes of probate duty it is considered capable of being localised :
of the court, amount to an agreement for purchase by the defendants of immunity from arrest of their vessel here, and an order for her release was 8.ccordingly refused.
Admiralty Appeals (with Assessors) will be taken in Appeal Court No. 1, on Tuesday, the 2nd March, and following days.
The trial of actions set down in the Commercial list will be resumed on Tuesday, the 23rd Feb. instant, and tried by the Hon. Mr. Justice Mathew.
Mr. Wheeler, Q.C., has been elected chairman of the Kensington Vestry.
Mr. Jastice Kekewich has taken Killochan Castle, in Ayrshire, the property of Lady Gordon Cathcart, for a term.
Sir John B. Monckton has consented to preside at the thirty-seventh anniversary Festival of the Solicitors' Benevolent Association which will be held at the Hotel Cecil, Strand, on Monday, May 24.
Mr. Frank Milner Russell, solicitor, of 4, Bedford-row, London, who died on the 6th Dec. last, aged 61, has left personal estate valued at £33,663 13g. 9d.
“ Mr. Pope, Q.C., is the title of the seventeenth of a series of articles on “Our Judges and Famous Lawyers,” now appearing in Lloyd's Weekly Newspaper.
Lord Russell, of Killowen, Lord Chief Justice, paid a visit to Hackney on Saturday in order to open the new public baths, which have been erected at a cost of £65,000. His Lordship commented on what he considered the advantages of Local Government.
Sir Charles Hall, Q.C., M.P., has left town, on the recommendation of his medical adviser, to spend a fortnight or three weeks at Cannes, where it is hoped he will complete his recovery from the sharp attack of ague which caused him to relinquish his work at the Old Bailey.
Mr. George Bettesworth Piggott, who was appointed by the Marquis of Salisbury Chief Judicial Officer and Consular Judge for the British Central Africa Protectorate, has just been offered and has accepted the Acting British Vice-Consulship, in addition to the important post he already holds.
The February adjourned general sessions for the trial of cases arising on the north side of the Thames, were opened on Wednesday, at the Sessions-house, Clerkenwell, before Mr. M'Connell, Q.C., Chairman, Mr. Loveland Loveland, deputy-chairman, and other justices. The calender .contains the names of fifty persons charged with offences.
The Chicago City Council has passed an anti-high theatre hat ordinance, which goes to the extreme length in its hostility to this part of women's -apparel. The ordinance forbids the wearing of any kind of bead-gear by any person in a theatre or other place of amusement, and makes the manager of the theatre or place of amusement responsible by imposing on him a fine of not less than 10 dollars nor more than 25 dollars for each and every hat so worn.
The annual meeting of the Association of Municipal Corporations will be held on Saturday, the 27th inst., at 11 a.m. in the Council Chamber of the Guildhall, in the City of London, by permission of the Corporation. Sir Albert Rollit, M.P., will be proposed for re-election to the office of president of the association for the ensuing year, and, if elected, will take the chair. Mr. J. C. Bigham, Q.C., M.P., will be proposed for re-election to the office of vice-president. The members of the association will dino together at the Hotel Métropole on Friday, the 26th inst., at 7.30 p.m.
At Bloomsbury County Court, on Tuesday, in an action down for hearing before his Honour Judge Bacon, a solicitor asked for an adjournment, as his client had not turned up.-Judge Bacon: What expression was that ?—The Solicitor: Well, it was a slang phrase. I should have said my client had not put in an appearance yet. Of course, that severely handicaps me.-Judge Bacon: What ? What expression was that again? Wbat condition are you in ? (Laughter, in the course of which the solicitor sat down).
The retirement of Mr. John Skelton, C.B., LL D., from the post of vicepresident of the Local Government Board for Scotland will take effect from the 31st March next. Dr. Skelton, who is in his sixty-sixth year, was admitted a member of the Faculty of Advocates in 1854, and entered the public service in 1868 as secretary to the Board of Supervision, becomir chairman in 1893. He has held his present post since Jan. 1895, when the Scotch Local Government Act came into operation. Dr. Skelton was made a C.B. in 1887. The salary of the appointment which he vacates is £1200 a year.
County Carlow Gaol has just been sold by auction (says the Daily Mail). Mr. Robert Bell, Carlow, officiated as auctioneer, and grew eloquent upon “ these extensive and valuable premises," with their debtors’ prison, convict prison containing thirty-four cells, female prison of thirty cells, house of correction, treadmill, pump, and "fine cut granite gate entrance." After an animated competition Mr. Molloy, a local merchant, was declared the purchaser at £1200. It was rumoured that the purchase has been inade in trust for some Roman Catholic purpose, probably an industrial school.
Barristers are not an unsociable class of men, says the Daily Telegraph, and yet they are without that most social of all institutions--a club. They dine together in the ancient halls of their respective Inns of Court; they
smoke cigarettes and drink coffee in their modest common-rooms ; they even entertain one another with melody in their highly successful musical society: but they have no home in which to combine the three. mittee of the Bar Council has been considering how best the deficiency may be made up, and has reported in favour of the establishment of a central club near the Law Courts. The subject is now being keenly discussed in chambers, and the hope is widely entertained that the recommendation may be successfully carried into effect. The nearest approach London has had in recent years to a barristers' club was the Temple, in Arundel-street, which came to an untimely end, largely because it was not sufficiently exclusive in its membership to win the confidence of the higher branch of the Legal Profession.
In few parts of the empire would a similar career to that of Mr. Harry Escombe, the new Premier of Natal, be possible. A Londoner, of Jewish extraction, Mr. Escombe (says the Leeds Mercury) commenced his colonial life as a retail outfitter. He was unsuccessful, and at his examination in bankruptcy a lawyer badgered him closely regarding the deficiency in the estate and the resources of the bankrupt. The latter asserted that he was cashless, and that to resume business was impossible. “Then, what are you going to do ?” was the next query ; to which Mr. Escombe testily replied: "I am going to take to the law now.” He immediately began his legal studies, contributing to a colonial newspaper meanwhile, ultimately passed as an advocate, and in a few years had not only obtained an extensive practice, but won distinction in his profession. His creditors were repaid, he became one of the representatives for Durban in the Legislative Council, and, on the adoption of responsible government in the colony, was made Attorney-General.
The defeat of Mr. Scott Dickson, the Scotch Solicitor-General, at the Bridgeton Election reminds us that law officers and ex-law officers of the Crown have been noted for misfortunes at the polls, says the Westminster Gazette. Thus Mr. (Lord Chief Baron) Palles was defeated when Irish Attorney-General in a contest for Londonderry in 1872. Mr. Samuel (Lord Justice) Walker was likewise defeated as Irish Attorney-General for Londonderry County in 1885, and again in 1886. Mr. (Justice) Monroe was defeated in Monaghan as Irish Solicitor-General in 1884. Sir Edward, Clarke was defeated at Southwark at the General Election of 1880-a seat which be had won four weeks previously at a bye-election, and Sir Horace (Lord) Davey was defeated at Stockton-on-Tees at the General Election of 1892. The list might, indeed, be indefinitely extended, and would include the present Lord Chancellor, who had four electoral defeats, Lord Ashbourne (one), Sir William Harcourt (three), and Mr. Justice Lawson (two).
Leaving personal estate valued at £163,910, Mr. Alexander Devas Druce, of the firm of Druces and Atlee, 10, Billiter-square, solicitor, who died on the 2nd Jan. last, aged sixty-nine years, appointed as executors of his will of the 26th Jan. 1894, with a codicil of the 2nd June 1896, his wife, Mrs. Kate Druce, and his sons John Alexander Druce and George Claridge Druce, and Hubert Arthur Druce, to the last-named of whom the testator bequeathed, if he should not be a partner in the firm of Druces and Atlee, £1000; to his sons Francis and Stephen, £2000 each ; to his daughters Mary and Kate Druce and Florence Brandt, £100 a year each, having made a like provision for his daughter Alice Bothamley. To Mrs. Druce he bequeathed a legacy of £2000, his household effects, the use and enjoyment of his house, Upper Gatton, and the income during her life of a sum of £10,000. He desired that Mrs. Druce should so dispose of the plate presented to his grandfather by the Corporation of the City of London and the Corporation of Dulwich College, and the portraits of his grandfather and of his uncle George, that they should be retained in the family. Nearly three hundred years ago Alexander Pope wrote
The hungry judges soon the sentence sign,
And wretches hang that jurymen may dine. This ancient couplet has received a great illustration in Boston in the case of Thomas M. C. Bram, tried for the murder of Capt. Charles Nash of the barque Herbert Fuller. According to the Boston Herald, it has been stated, and probably not without truth, that the jurors agreed to convict because they were hungry. While certain members of this famous twelve deny such to be the fact, it is nevertheless true that all of the dozen were hungry, and all desired to get away from their tedious and monotonous duty. Officers of the court state that the failure to order a dinner for the twelve arguing men was an oversight, and was altogether unintentional on the part of the interested parties; yet it is certain that the rumour which circulated and gained much credence throughout the jury room, that there was nothing more to eat until a verdict was arrived at, hastened the decision of some of the doubtful
The last of the twelve to hold out for a disagreement remarked, as he cast his ballot for conviction,“ May God forgive me and have mercy on my soul if I have done wrong." The verdict came as a surprise to almost everybody, the general opinion of those who had read the evidence being that the jury would either acquit or disagree. It was one of the maxims of Lord Stowell that “a dinner lubricates business," and Lord Byron tells us :
All human history attests
Since Eve ate apples, much depends on dinner." - Albany Argus.
WARNING TO INTENDING HOUSE PURCHASERS AND LESSEES.-Before purchasing or renting a house have the hitary arrangements thoroughly examined, tested, and reported upon by an expert from Messrs. Carter Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of full particulars. (Established 21 years.)--[Apvt.]
NOTES OF RECENT DECISIONS NOT
COURT OF APPEAL. Co npany-Winding-up-Creditor's Petition - Right of Creditor to a
Winding-up Order Ex debito justitiæ-Private Company-Debentures covering all Assets--Companies (Winding-up) Act 1890 (53 & 54 Vict. c. 63).-A company was registered in Sept. 1892 and was formed for the purpose of acquiring from a certain firm the business theretofore carried on by them. The company was what is known as a private" company, i.e., one where the vendors to the company and the shareholders were identical, and the company was entirely under the control of its debenture and share holders. Upon its formation £3000 debentures were issued to the vendors as consideration for the sale of the business. The company was indebted to creditors for printing and advertising, and they presented a petition for the compulsory winding-up of the company. It was admittedly insolvent at the date of the petition. When the petition was presented, the appeal to the House of Lords in Broderip v. Salomon and Co. had not been de cided, and an attempt was made to make the vendors liable to indemnify the company on the principle of the decision of the Court of Appeal in that case (72 L. T. Rep. 755 ; (1895) 2 Ch. 323), but that became impossible after the reversal of that decision by the House of Lords sub nom. Salomon v. Salomon an Co. (75 L. T. Rep. 426; (1897) A. C. 22). The opposition to the petition was based on the fact that the vendors held debentures in the company for £3000 and that the assets were not nearly sufficient to satisfy those debentures, and consequently that the outside creditors would gain nothing by winding-up the company. It was argued for the com any and its debenture-holders that, as all the property of the company was covered by debentures and no good could result from the order being made, the petition should be dismissed, following the rule laid down in Re The Chapel House Colliery Company 49 L. T. Rep. 575 ; 24 Ch. Div. 259). It was decided by Williams, J. (102 L. T. 132) that the petition must be dismissed, there being no primâ facie case made out for impeaching the debentures; but that, in the case of a private company, the court ought carefully to inquire into the circumstances and obtain very full information as to what had become of the property, and whether there was any ground for impeaching the debentures, and thus obtaining something for the unsecured creditors, before dismissing a petition for winding-up. The petitioners appealed. For the petitioners, it was contended that there was no real consideration for the debentures, and that they ought to be set aside under 13 Eliz. c. 5, ss. 1 and 2, as a fraud upon the outside creditors; and that at any rate the petition ought to be allowed to stand over as in Re The Olathe Silver Mining Company (27 Ch. Div. 278) for an inquiry to be directed in chambers whether these debentures ought not to be set aside. Held, that, having regard to the decision of the House of Lords in Salomon v. Salomon and Co. (ubi sup.), it was impossible to assist the petitioners, however much the court might be disposed to do so, inasmuch as the sale to the company could not be impeached, and there was not therefore the slightest possibility of there ever being anything for the unsecured creditors if the company were ordered to be wound-up. Held also, that, as the petitioners had not availed themselves of their opportunity of cross-examining the vendors on their affidavits, it was too late now to grant an inquiry as in Re The Olathe Silver Mining Company (ubi sup.). Decision of Williams, J. affirmed.
[Re The London Health Electrical Institute Limited. Ct. of App. No. 2 : Lindley, Smith, and Rigby L.JJ. Feb. 12-Counsel : for the appellants, Waghorn and Nepean ; Butcher; for the respondents, Austen-Cartmell. Solicitors : for the appellants, A. Arnold Hannay;
for the respondents, Mann and Taylor.] Contempt of Court-Breach of Injunction-Committal-Person not Party
to Action for Injunction-Aiding and abetting-Agents and ServantsPersons liable.-On the 15th July 1896, a perpetual injunction was granted in an action restraining P. the sole defendant, his under-tenants, agents, and servants, from doing or suffering to be done anything on premises leased to P. by the plaintiff S. which might interfere with the full and quiet enjoyment by the plaintiff S. or his under-tenants of the premises adjoining or neighbouring thereto. The acts complained of were the holding on the premises leased to P. certain glove fights or boxing contests. These acts were repeated on the 9th and 21st Oct. A motion was then made to commit P. and a servant of his. P. then swore an affidavit that he had never since the order had any control of the premises ; that he had taken the lease thereof at the request of M., who had promised to indemnify him against all obligations, and bad in Dec. 1895 taken possession of the premises and let into possession a certain club, by whom the contests objected to were held. Thereupon the notice of motion was amended by asking for the committal of M. On the evidence, the Court came to the conclusion that M. was informed of the injunction as soon as it was granted, and that he had been present on the 9th and 21st Oct., not as a mere spectator, but as assisting in the breach of the injunction. It was decided by North, J. (ante, p. 339), that M., though neither a party to the action nor an agent or servant of P., must be committed, not for breach of injunction, but for contempt of court in deliberately aiding and abetting acts against which he knew an order had been made. P. and his servant were also committed. M. appealed. In support of the appeal it was argued that the court had no jurisdiction to commit for contempt of court for breach of an injunction a person who was not a party to the action in which such injunction was granted, even though he were a servant or agent of the defendant
to the action. It was futher contended that the evidence in the present case showed that M. had not aided and abetted P. in the acts complained of. The dictam of Lord Eldon in Iveson v. Harris (7 Ves. 251, at p. 256) was relied upon. Held, that the court had jurisdiction to commit for contempt. a person though not a defendant to an action, and against whom an injunction had not been granted, who, knowing of that injunction, aided and abetted in a breach of it the person against whom the injunction had been granted. Lewis v. Morgan (5 Price, 518); Lord Wellesley v. The Earl of Mornington (11 Beav. 180); Avory v. Andrews (46 L. T. Rep. 279: 51 L. J. 414, Ch.); and Day v. Longhurst (68 L. T. Rep. 17; 41 W. R. 283) considered. Ireson v. Harris (ubi sup.) distinguished. Held also, on the facts of the case, that M. was not present on the 9th and 21st Oct. as a mere spectator, but as one of the persons who was at the bottom of the whole thing objected to by the plaintiff S. ; that therefore this was a gross case of contempt; and that the court would be utterly wrong if it did not commit M. Held therefore that the appeal must be dismissed with costs. Decision of North, J. affirmed
Seaward v. Paterson. Ct. of App. No. 2 : Lindley, Smith, and Rigby, L.JJ. Feb. 15 and 16.-Counsel : for the appellant, Seward Brice, Q.C., Stephen Lynch, and Kays; for the respondent, Swinfen Eady, Q.C. and Methold. Solicitors : for the appellant, Norris and
Son ; for the respondent, Proudfoot and Chaplin.] Poor Rate-Exemption-County Buildings_ User for Judicial Purposes
User by County Council for County Business---No exclusive User for Crouen Rateability.- On an appeal by the Worcestershire County Council to quarter sessions, against a rate or assessment for the relief of the poor, the facts were by consent and an order of a judge stated in a special case for the opinion of the court. The facts stated were as follows: The Shirehall in Worcester comprised the county-ball, courts of justice, offices, and judges' lodgings. From 1839 to 1896 neither the justices nor the county council were assessed in respect of the Shireball. In 1896 the county council were assessed in respect of an apportioned part of the whole building, except the court. The parts of the building which were assessed were all used by the county council for the purposes of county business. The same parts of the building were also used by the clerk of the peace in connection with the judicial business of quarter sessions, as a County Court, as a second court at quarter sessions, sometimes as a court at petty sessions, as waiting rooms at assizes and sessions, by the clerk of indictments, and for some other purposes in connection with assizes, County Courts, and sessions. All sums charged for the letting of any of the rooms for other purposes were paid to the county council. The Local Government Act 1888 (51 & 52 Vict. c. 41), by sect. 3 (iv.), transferred the Shirehall to the county council. The question for the opinion of the court was, whether the county council was liable to be rated to the relief of the poor in respect of the said premises or any part thereof. The Divisional Court (Wright and Bruce, JJ.) decided that the county council were liable to be rated in respect of that part of the building for which the council had been rated. The county council appealed. Held (dismissing the appeal), that, inasmuch as buildings were not used exclusively for the service of the Crown, the county council were liable to be rated.
[Worcestershire County Council v. Assessment Committee of the Worcester Union. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. Feb. 16.—Counsel: for the appellants, Alfred Young and Vachell; for the respondents, Bosanquet, Q.C. and R. Harington. Solicitors : for the appellants, Clarke and Blundell, for S. Thorneley, Worcester ;
for the respondents, G. A. Hall, for A. W. Knott, Worcester.] Solicitor -- Remuneration Lease Scale Fee General Order under
Solicitors' Remuneration Act 1881 (44 & 45 Vict. c. 44), Sched. I. Part 2; First and Second Scales ; Rule 6.—In 1887 the committee of a lunatic was directed by a master in lunacy to take a seven years' lease of a house as a residence for the lunatic, at a rent of £350 per annum. The committee then paid to the lessor's solicitors a fee of £13 15s.viz., £7 10s. for the first £100 of the rent, £2 10s for the second £100, £2 10s. for the third £100, and £1 5s. for the additional £50. A fee of half this amount was paid by the committee to bis own solicitors. In 1894 the lease was renewed for another seven years at the same rent, and similar fees were paid by the committee to the lessor's solicitors and his own solicitors respectively. The committee carried in his charges for taxation in the lunacy, in order that they might be allowed to him out of the lunatic's estate. The taxing master disallowed in each case the fee paid in respect of the additional £50 of rent (beyond the £300), holding that its payment was not authorised by the schedule to the General Order under the Solicitors' Remuneration Act 1881. Part II. of Schedule I. to that Order provides by the first scale, which applies to leases at rack rent (other than a mining lease or a lease for building purposes), that the remuneration of the lessor's solicitor " for preparing, settling, and completing lease and counterpart ” shall be “ where the rent does not exceed £100, £7 10s. per cent. on the rental, but not less in any case than £5”; “where the rent exceeds £100 and does not exceed £500, £7 10s. in respect of the first £100 of rent, and £2 10s. in respect of each subsequent £100 of rent.” The lessee's solicitor for perusing draft and completing is to charge one half of the amoant payable to the lessor's solicitor.” By the second scale, which applieg to “ building leases reserving rent, or other long leases not at rack rent (except mining leases),” the remuneration of the lessor's solicitor is to be, “where the amount of annual rent does not exceed £5, £5"; " where it exceeds £5 and does not exceed £100, the same payment as on a rent of £5 and also 20 per cent. on the excess beyond £5.” Then follow provisions for cases "where the rent exceeds £50, but does not exceed £150,” and “where the rent exceeds £150.” Then come rules “ applicable to Part II. of Schedule I. as to all leases at a rent, other