Page images


[ocr errors]


Trade Mark-Magnolia-Geographical Name-Character or Quality of

GoodsAssignment-Goodwill Rectification of Register-Patents, Designs, and Trade Marks Act 1888 (51 & 52 Vict. c. 50), 8. 10 (e)-Patents, Designs, and Trade Marks Act 1883 (46 & 47 Vict. c. 57), s. 70. - Motion by the Atlas Metal Company Limited, of Queen Victoriastreet, for the removal of three trade marks from the register. The Magnolia Metal Company had registered three trade marks, the first consisting of the word Magnolia with a device representing the flower of that name; the second consisting of the word Magnolia alone; and the third a representation of the magnolia flower, these trade marks being registered in connection with anti-friction metals used for bearings of machinery. Held, that though several towns and places in America were called Magnolia, the name was for the present purpose not a geographical name, but the name of a flower and should not be expunged ; that upon the evidence the word Magnolia had reference to a metal generally known as magnolia metal, it had reference therefore to the character or quality of the goods, and should be expunged from the register. That the third trade mark the representation of the magnolia flower was good, but that in Oct. 1896, the date of the assignment of the trade mark by the Magnolia Antifriction Metal Company, an American company, to the Magnolia Metal Company, the American company, the assignors, had no goodwill in connection with anti-friction metal bearings, but with anti-friction metal only; the assignment, therefore, dil not comply with sect. 70 of the Patents, Designs, and Trade Marks Act 1883, and this trade mark must also come off the register, and the respondents must pay the costs of the motion.

[Re The Magnolia Metal Company's Trade Marks. Ch. Div.: Keke. wich, J. Feb. 24 and 25. Counsel: Warrington, Q.C. and Sebastian; Bousfield, Q.C., T. L. Wilkinson, and Newton Crane. Solicitors :

Herbert Stanley Sugden; Indermaur and Brown.] Trustee-Investment- Mortgage of Undivided Shares in Trade Premises

-China Clay WorksNo Valuation---Trustee Act 1893 (56 % 57 l'ict. c. 53), 8. 9-Judicial Trustees Act 1896 (59 f. 60 Vict. c. 35), s. 3.Under the will of Mrs. J. M. Strong, who died on the 13th Aug. 1876, two sums of £450 and £450. invested on mortgage, were bequeathed to Henry Ivimey and James Turner upon trust for the first named plaintiff for life, with remainder to the second plaintiff absolutely. The will contained power for the trustees to invest in freehold securities, and a direction that Ivimey, who was a solicitor, should be entitled to charge for professional work. The two sums of £150 and £450 were paid off in Jan. 1879 and May 1880 respectively, and were reinvested in undivided shares of land tenements and china clay works in Cornwall. Ivimey, who was the acting trustee and solicitor to the estate, was himself interested in other undivided shares of the pro. perty, and he arranged the investment. No report or valuation

ever made ; the tenements were let at small annual payments, and the mines and works were of fluctuating value. Turner, who was a linendraper at Hanwell, was informed that the property was freehold and that the mortgagor was a friend of Ivimey, but he did not know that the latter was a co-owner of the estate. The interest was paid regularly at first, but afterwards irregularly, and it was proved that the real value of the property, both at the date of investment and at the time of the trial, was about £620. Turper died in Sept. 1892, and in 1895 this action was brought against Ivimey and the executors of Turner for a declaration that the invest. ment was improper and for an order on the defendants to make good the loss. The representatives of Turner served a third-party notice on Iviiney claiming to be indemnified by him against the plaintiff's claim, and they also relied on the Trustee Act 1893, sect. I, and asked for relief under the Judicial Trustees Act 1896, sect. 3, on the ground that Turner had acted bonestly and reasonably in relying on the representations of his co-trustee, who was a solicitor and had beon appointed by the testatrix herself. Held, following Learoyd v. Whiteley (58 L. T. Rep. 93 ; 12 App. Cas. 727) and Blyth v. Fladgate (63 L. T. Rep. 546 ; (1891) 1 Ch. 353), that the investment was improper, and that the defendants were liable to make good the loss, that they were not entitled to the benefit of the Trustee Act 1893, sect. 9; and further, that Turner, though acting honestly, bad not acted reasonably so as to entitle him to exoneration under the Judicial Trustees Act 1896, but that Ivimoy was liable to indemnify his co-defendants.

[Re Turner ; Barker v. Ivimey. Ch. Div.: Byrne, J. Feb. 23 and 26. Counsel : Eve, QC. and Solomon ; H. Neuson; Hopkinson, Q.C. and Safton Strickland. Solicitors : Redpath, Holdsworth, and Marshall, for W. Reed, North Shields; H. Ivimey ; 0. E. Dawson.]


perhaps occupied the time of the court for a longer period than any other trial on record, except that of Warren Hastings), although there were frequent conflicts between the Bench and the advocate for the "Claimant," and several reminders to him by the judges of the weapon with which the law armed them, the Court never went to the length of depriving the client of the services of his advocate. The natural disinclination of the court to interfere with counsel in such a way as to take his services from his client ought to form a strong reason for counsel not assuming too great a licence." This passage may be taken as a good short exposition of the true position, and of a correct appreciation of what the proper relations should be.

It is difficult to find a clear case of a barrister being punished for contempt while actually pleading for his client in court. Re Pater is, however, such a case (12 W. R. 823). Of two other cases cited by Mr. Oswald, where both the persons committed were litigants, and apparently solicitors, Carus Wilson's case (7 Q. B. 984) may be, for the present purposes, worth looking at; in the other (Reg. v. Jordan, 36 W. R. 589) Mr. Justice Cave said that the observation “ That is a most unjust remark,” however said, is a gross insult to any court of justice, and if not withdrawn amounts to a contempt. Re Pater does not help us much. Mr. Pater, a barrister practising at the Middlesex Sessions in 1864, feeling himself aggrieved by certain interruptions on the part of the foreman of the jury, remarked in his speech for the defence, “ I thank God there is more than one juryman to determine whether the prisoner stole the property

for, if there were only one, and that one the foreman, from what has transpired to-day, there is no doubt what the result would be.” For this he was ultimately fined £20. On appeal to the Queen's Bench, Chief Justice Cockburn said : “It appeared that Mr. Pater was fined for certain words uttered in his address to the jury, and I quite agree with Mr. Pater's counsel (Denman, Q.C., M-Mahon, and Kenealy] that the words in themselves are words which any counsel might have uttered in the honest discharge of his daty, and if they had been so uttered, though they might have been barsh and unpleasant to the party affected, that could not have been construed into contempt. But, on the other hand, if, though used in the course of his address to the jury, they were not used for the purpose of inducing the jury to come to a conclusion in favour of his client, but for the purpose of wantonly insulting one of the jurors, then I say they are an abuse of the privilege of counsel, and properly punishable as contempt of court.”

The Court refused any relief. It will be noticed here that the contempt was not for words uttered to the Bench, but the deputy assistant judge stated in his affidavit that, on his imposing the fine, Mr. Pater said, “ This shall not rest here ; I will bring the subject under the notice of Sir George Grey, and very probably your removal from the bench will be the result.” With other instances of barristers punished (by fine or commitment) for contempt on grounds totally different to those in question, there is no need to deal here.

There are some historic precedents of impassioned dialogue between the representatives of the two orders. To begin with, there is the classic story of Wedderburn in 1757. Lockhart, being against him in the Inner House at Edinburgh, showed "even more than his wonted rudeness, and superciliousness," and called him “a presumptuous boy.” · Wben,” says Campbell (Life of Lord Loughborough in the Chancellors, vol. 6, p. 47), " the presumptuous boy came to reply, he delivered such a furious perronal invective as never was before or since heard at the Scottish bar." Wedderburn's language, reported by Campbell, was an outrage on decency. “Lcr] President Craigie, being afterwards asked why he had not sooner interfered, answered, . Because Wedderburn made all the flesh creep on my bones.' But at last his Lordship declared in a firm tone that this was language unbecoming an advocate and unbecoming a gentleman.' Wedderburn, now in a state of such excitement as to have lost all sense of decorum and propriety, exclaimed that his Lordsbip had said as a judge wbat he could not justify as a gentleman. The President appealed to his brethren as to what was fit to be done, who unanimously resolved that Mr. Wedderburn should retract his words and make an humble apology, on pain of deprivation. All of a sudden, Wedderburn seemed to have subdued his passion, and put on an air of deliberate coolness, when, instead of the expected retractation and apology, he stripped off bis gown, and, bolding it in his hands before the judges, he said, "My Lords :: I neither retract por apologise ; but I will save you the trouble of deprivation; there is my gown, and I will never wear it more-virtute me involvo.' He then coolly laid his gown upon the bar, made a low bow to the judges, and, before they had recovered from their amazement, he left the court, which he never again entered.”

Another Scotchman, who also rose to be Lord Chancellor of England, played a nobler part in his contention with the Bench. In 1784 the Dean of St. Asaph was indicted at Shrewsbury for seditious libel, and he was defended by Thomas Erskine. The jury found him “ Guilty of publishing only.” Buller, J.: “If you find him guilty of publishing, you must not say the word 'only.'"- Erskine : “ By that they mean to find there was no sedition.”-Juror : “We only find him guilty of publishing. We do not find anything else."--E.: “I beg your Lordship's pardon, and with great submission. I am sure I mean nothing that is irregular. I understand they say, 'We only find him guilty of publishing.'”-Juror : “ Certainly, that is all we do find."--B.: If you only attend to what is said, there is no question or doubt."-E.: “ Gentlemen, I desire to know whether you mean the word 'only' to stand in your verdict.”-Jurymen: “Certainly." -B.: “Gentlemen, if you add the word 'only' it will be negativing the innuendoes.”—E. : “I desire your Lordship, sitting here as judge, to record the verdict as given by the jury.”-B.: “ You say he is guilty of publishing the pamphlet, and that the meaning of the innuendoes is as stated in the indictment.”- Juror : “ Certainly."-- E.: “ Is the word only'

'to stand part of the verdict ?"-Juror : "Certainly.”—E.: “ Then I insist it shall be recorded.”—B.: “ Then the verdiet must be misunder

[ocr errors]
[ocr errors]




[ocr errors]


BAR. “GOOD FEELING,” says Mr. Oswald in his work on “ Contempt of Court” (at p. 40), “nearly always exists between the Bench and the Bar ; and when it is interrupted the reason for it may generally be found to exist on both sides. There is scarcely any instance upon record in the Superior Courts of a confiict between the Bench and the Bar becoming so acute as to lead to the committal of an advocate for contempt while conducting his client's

Even Chief Justice Jeffreys (who is said to have brow-beaten and sometimes threatened counsel) does not appear to have put in force the jower of committal against, counsel. And during the progress of tbe ince celebrated Reg. v. Castro, or Tichlorze cise (which in its hearing


[ocr errors]
[ocr errors]
[ocr errors]


[ocr errors]

that he seeks to resume it-it is in vain that he endeavours to shelter him. self behind an authority which he has abandoned.” Robinson exclaimed, “ If you say another word, Sir, I'll commit you.”- Then, my lord, it will be the best thing you'll have committed this year.” The judge did not do as he threatened, any more than was done in any of the cases already mentioned, or indeed in any recorded; but it is instructive to read that "he applied to his brethren to unfrock the daring advocate, but they refused. The true principle may be adduced from Curran's apologue. So long as a judge speaks in that capacity, be he right or wrong, he is entitled to all respect of demeanour and all courtesy of language. The moment he descends to personalities, invective or criticism not warranted or required by his duty to the court, that is, to the public, he strips himself of his judicial function, and the pereon aggrieved by his language is entitled to speak to him as man to man, a relation which of course still includes that of gentleman to gentleman.

In such a competition the judge, of course, starts with everything in his favour ; if he is worsted, or reduced to silence, it must be his own fault. That some judges have succeeded in being severe without being insulting, may be seen from Roger North's account of bis brother the Chief Justice (about 1675): “There were yet some occasions of his justice, whereupon he thought it necessary to reprehend sharply. As when counsel pretended solemnly to impose nonsense upon bim, and when he had dealt with them, and yet they persisted, this was what he could not bear, and if he used them ill, it was what became him, and what they deserved. And then his words made deep scratches; but still with salvo to his own dignity, which he never exposed by impotent chiding."

[ocr errors]


[ocr errors]


[ocr errors]

stood ; let me understand the jury.”—E. : “ The jury do understand their verdict."--B.: “Sir, I will not be interrupted."--E.: “I stand here as an advocate for a brother citizen, and I desire that the word 'only' may be recorded."-B.: “Sit down, Sir; remember your duty, or I shall be obliged to proceed in another manner.”- E. : “ Your Lordship may proceed in what manner you think fit; I know my duty, as well as your Lord. ship knows you s. I shall not alter my conduct.” (Campbell, Ibid., p. 432.)

The verdict was finally entered “ Guilty of publishing, but whether a libel or not we do not find."

Valuable as this precedent is, the comment of Campbell, himself a judge and Lord Chancellor, is equally precious : “ The learned judge took no notice of this reply ; and quailing under the rebuke of his pupil. did not repeat the menace of commitment. This noble stand for the independence of the Bar would of itself have entitled Erskine to the statne which the Profession affectionately erected to his memory in Lincoln’s-Inn Hall. We are to admire the decency and propriety of his demeanour during the struggle no less than its spirit, and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. The example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in England."

Another hot forensic mélée is recorded about 1817 12 Law and Lawyers, 357). Serjeant Taddy was examining a witness in the Common Pleas, and spoke of the plaintiff " disappearing" from that neighbourhood. Park, J.; “ That's a very improper question, and ought not to have been asked.”—T.: “ That is an imputation to which I will not submit I am incapable of putting an improper question to a witness.”—P. (angrily): " What imputation, Sir? I desire that you will not charge me with casting imputations. I say that the question was not properly put, for the expression disappear' means to leave clandestinely.'"--T.: “I say that it means no such thing.”—P.: “I hope that I have some understanding left, and, as far as that goes, the word certainly bore that interpretation, and therefore was improper.”—T.: “I never will submit to a rebuke of this kind.”—P.: “That is a very improper manner, Sir, for a counsel to address the court in."-T.: “And that is a very improper manner for a judge to address a counsel in.”—P. (rising, very warmly): “I protest, Sir. You will compel me to do what is disagreeable to me.' T.: “Do what you like, my lord.”—P. (sitting down): “Well, I hope I shall manifest the indulgence of a Christian judge."--T.: “You may exercise your indulgence or your power in any way your lordship’s discretion may suggest, and it is a matter of perfect indifference to me.”—P.:"I have the functions of a judge to discharge, and in doing so I must not be reproved in this sort of way."--T.: “And I have a duty to discharge as counsel which I shall discharge as I think proper, without submitting to a rebuke from any quarter.” Serjeant Lens was about to interfere. Taddy protested against any interference, but Lens said, “ My brother Taddy, my Lord has been betrayed into some warmth “I protest," said Taddy, “ I am quite prepared to answer for my own conduct.”—P.: “ My brother Lens, Sir, bas a right to be heard."-T.: “Not on my account, I am fully capable of answering for myself.”—P.: “Has he not a right to possess the court on any subject he pleases ? ”–T.: “Not while I am in possession of it, and am examining a witness.”. “ Mr. Justice Park, then seeing evidently that the altercation could not be advisably prolonged, threw himself back into his chair, and was silent."

Lord Brougham mentions a strange scene of which he was a witness, amusing rather than of good example. At Darham (about 1810 ?) a cause was being tried before Baron Wood, " There was heard an undergrowl on the other side from the Serjeant (Cockell), abusing Topping for his insolence and ingratitude, and the Baron for bis ignorance and partiality, and calling for his clerk to bring him some of the stomach tincture, which we knew would console him, as it was generally brandy with some water added, to give it a name rather than materially alter its nature.” (Works, vol. 4, p. 384).

Something has been said about Kenealy's case above. As a matter of fact, his utterances in court never formed the subject of inquiry by any professional tribunal, but the important point to notice is that it was his Inn, Gray's, which set the Lord Chancellor in motion (on account of his editorship of the Englishman) with the result that he was dispatented, and which disbenched and disbarred him on the same ground.

It will be clear from all the instances that no formula can exactly define to what length of retort or of freedom of speech in addressing a judge counsel may with propriety--(as to safety, there is practically no question) -go. Obviously, a genuine instinct of self-respect will inspire an advocate with the exact measure of what is due to himself, and what is due to his professional superior, just as it will antagonists in any other controversy. This is what Campbell called in Erskine “the felicitous precision with which he meted out the requisite and justifiable portion of defiance." Without that instinct it matters little at the Bar, or anywhe else, on which side the merits of the dispute are; it cannot be conducted in a seemly way by him that lacks it.

Perhaps the true “rule” may be collected from a dictum attributed to Curran arguendo. He offended Judge Robinson, who exclaimed furiously, ** Sir, you are forgetting the respect that you owe to the dignity of the judicial character." Dignity! my lord,” said Curran, “upon that point I shall cite you a case from a book of some authority, with which you are perhaps not unacquainted. A poor Scotchman, upon his arrival in London, thinking himself insulted by a stranger, and imagining that he was the stronger man, resolved to resent the affront and taking off his coat delivered it to a bystander to hold, but having lost the battle be turned to resume bis garment, when be discovered that he had unfortunately lost that also--that the trustee of his habiliments had decamped during the affray. So, my lord, when the person who is invested with the dignity of the judgment-seat lays it aside for a moment, to enter into a disgraceful personal contest, it is vain, when he has been worsted in the encounter,

[ocr errors]
[ocr errors]



The first volume has been published of an Encyclopædia of the Laws of England (London : Sweet and Maxwell Limited. Edinburgh: Wm. Green and Sons). The general editor is Mr. A. Wood Renton, B.A., LL.B., and an introduction prefaces the work from the somewhat misty and uncertain pen of Sir Frederick Pollock. What useful purpose this introduction serves we have failed to discover. The author assumes that he has taken a rough view of the various subjects which may occupy English courts of justice-very rough, and extremely difficult to appreciate—while he gives a “summary” which he does not recommend anyone to adopt as a plan of study, and which is as bare as the bones of a skeleton. How this preliminary dissertation helps forward an intelligent understanding of the work itself we fail to understand. We are more concerned, however, with the design of the “ Encyclopædia. It strikes us as not being the outcome of mature deliberation. The object is a great one, for it approximates upon a code. A primary obligation upon the compilers surely was to omit unnecessary headings and too great a multiplication of cross-references. “ American Law" and "American Securities” are, we think, out of place.

“ Access is a good illustration of both defects. “ Access of Husband to Wife-see Legitimacy;’ Access to Air-see Air ;” “ Access to Highway-see Highway ; Access to Infant-see Parent and Child ; ' “ Access to Rivers—see Rivers." No one, we should have thought, would expect to find “ Access as a substantive heading in a code of law. So “ Accommodation Bill” appears to be an unnecessary heading. No lawyer or student would look for the law about accommodation bills except under the heading “ Bill of Exchange." Turning to “ Air," the reader finds one of those general statements of fact which are not infrequent in this volume, but quite unnecessary.

" The air is one of those natural agents provided for the general use of mankind and other creatures, without which the life of man could not be." What about the other creatures ? So again “Anchor”-“for a description of them from the point of view of mechanics or navigation, reference should be made to Falconer's Marine Dictionary 1805 and McCulloch's Dictionary of Navigation.” The heading · Adultery” is a worse offender. It does not appear to have had an author. It principally relates to what the law is not. So again, as to surplusage, take " Accident Insurance”-in a permanent work on law. “There has been a considerable development of this branch of insurance during the last twenty or thirty years, owing no doubt to the multiplicity of machinery and the great increase of traffic in our streets." Does this: apply to London, or to all streets throughout the country? If the latter, we doubt whether it is correct. The statement, however, is not law, of which this is an Encyclopædia. The great blot, however, appears in the useless cross-references, of which we have given some. Here are others : “ Ballot boxsee Ballot; Ballot papers

3-see Ballot; Band of music

[ocr errors]




[ocr errors]



see Illegal Practices;” “Anglican Communion-see Church of England.” We might multiply indefinitely. Of the substance of the volume it is impossible to speak with confidence, but the examination which we have been able to give it satisfies us that it is up to the reputation of the authors, whose names, generally, are well known as those of careful and competent lawyers. We think there might be more condensation, and trust this may be possible in future volumes. We recognise that such a new departure involves very great difficulties, and our sympathies are with the editor, who really ought to have three or four colleagues to revise the MS. If this attempt does not attain the highest excellence it will unquestionably form a good basis for future work, and we trust that our very candid criticism will prove no discouragement but an incentive.

uncertain, at least totally different in different parts of England. It would almost seem, at least so far as customary law is concerned, the England of the Conquest must have resembled the France of Louis XIV., in which, Voltaire wrote, a traveller had to change laws almost as often as he had to change horses. But, after an elaborate argument, Professor Maitland establishes that the hide was 120 acres. In these days of agricultural depression it is still consoling to note that the rent in 1085 A.D. was only twopence an acre.

It only remains to say that these essays are written with a scholastic elegance that is maintained throughout the most laborious argument, and that the tout ensemble of the volume is in every respect excellent and worthy of the Cambridge University Press.


A Handy Book on the Formation, Management, and Winding-up

of Joint Stock Companies. By WILLIAM JORDAN, Parliamentary and Registration Agent, and F. GORE-Brown, of the Inner Temple. London: Jordan and Sons Limited, 120, Chancery

lane. The nineteenth edition of this small, but comprehensive, work, though only published in Feb. 1896, was exhausted in a few months, and the authors have at once issued a new one, which includes the very latest decisions. In the present craze for company promoting and floating all those who are, or are likely to be, directors will find in this little work something to read, mark, learn, and inwardly digest, as it contains a full and accurate account of their position, duties, and liabilities. To that large class of persons who are content to invest in any sort of debenture, a perusal of pages 134-150 will be of the greatest advantage. Property Law for General Readers. By W. CASSELL MAUDE,

B.C.L., M.A., Barrister-at-Law. London: Effingham Wilson,

Royal Exchange. This volume is an outline of the law of property written for the general reader. It deals with all kinds of property, and within a reasonable space gives in a clear and readable manner such points of this branch of the law as frequently affect those persons for whom it is intended.

Domesday Book and Beyond. By FREDERIC William MAITLAND,

Downing Professor of the Laws of England in the University of Cambridge, Lincoln’s-inn, Barrister-at-Law. Cambridge:

At the University Press. MR. ANDREW LANG has recently observed in a periodical that, though a reviewer ought to know more than the author, and ought to provide some additional piece of information to his author's, yet in practice an author may be satisfied if a reviewer confines himself to a description of the purpose of his author's work, and his own estimate of the style. These remarks are a great solace to anyone who reviews a work on early English law by Professor Maitland. On a subject where your author is not only a leading authority, but where there is hardly anyone near him, it would, indeed, be a difficult task to undertake to find synthetic observations. Professor Maitland, in his Domesday Book and Beyond, finds it necessary himself to point out the difficulty of his task, and goes so far as to say that a complete knowledge of ancient English History, and of the Domesday Book in particular, is a thing of the future more than a present possession. We shall have, he concludes his work with saying, not only to make discoveries, but to form habits. But it must not be inferred, from his having assumed a tentative style, that in the 500 odd pages before us Professor Maitland has not collected a vast fund of information from the Domesday Book. The original records may, indeed, be insufficient, and even, it appears, sometimes inaccurate; but the acute and laborious analysis which the author brings to the solution of difficulties is as conclusive as it is satisfactory. Early English law is said to have been very insufficiently studied, and one might venture to assert that there are, even among distinguished lawyers, many to whom the three essays of Professor Maitland on the subject of the Domesday Book would prove truly synthetic. “Termes queinte of lawe"abound, and to very many must be as mysterious as the meaning of the E. carved in the Pro-naos at Delphi. It is interesting to note that, though the aim of Professor Maitland is to elucidate the disputed problems of tenure, Domesday Book cannot be called a book of tenures any more than Littleton. Domesday Book is really, as the author of these essays is at pains from the first to show, a geld or rate book. It was intended to form the basis of the land taxation of the Conqueror. There may be a certain bathos in the announcement, but the fact that Domesday Book is a geld-book underlies the whole of the author's treatment of the subject and explains the difficulties of his task. But we shall understand the system of tenures better by consulting, and, if possible, discovering, treatises which appeared between the era of the Conquest and the date of the appearance of Littleton's treatise. Domesday Book does not treat of tenures directly, and Littleton wrote when feudal tenures were decaying. Professor Maitland, in his first essay, treats of Domesday Book, and embraces such kindred subjects as villeinage and the feudal superstructure generally; the second essay deals with England before the Conquest; the third with the hide, or unit of area. Bacon said that to ramble back into antiquity is often the same thing as to innovate; and the conclusions of Professor Maitland, which are such as it would involve the utmost temerity to reject, are, indeed, startling in their wide departure from loose generalities and preconceived notions. St. John, arguing for Hampden in the Exchequer Chamber, said that in early times “ all things concerning the king's prerogative and the liberty of the subject were upon uncertainties.” But, in 1085, even territorial measurements were, if not

NEW EDITION. We have received the fourth edition of Models of Bills of Costs, by J. F. C. Bennett, solicitor (London: Waterlow Bros. and Layton). The book has been revised by means of bills which have actually passed through the hands of the taxing masters, and an introduction has been added dealing with the various points of principle decided by recent cases on the subject. The work, treating of bills not only in the High Court but also in the inferior courts, is one we can recommend to the Profession.

Mr. Evelyn Freeth's Death Duty Acts (Stevens and Sons Limited) has entered its second edition. The new feature is that the Finance Act 1896 has been worked or “ woven," as the author says, into the text. A careful revision, with a view to difficulties which have arisen in practice, perfect what was already an excellent compendium.

We need do little than record the appearance of a fifth edition of Messrs. Gibson and Weldon's Student's Conreyancing (The “Law Notes " Publishing Offices). The authors say that it has been revised with a view to the use made of it by practitioners as well as students.

A seventh edition of The Law and Practice under the Companies' Acts, by Mr. Buckley, Q.C. (Stevens and Haynes), has appeared. Mr. Buckley has apparently given his own

. personal attention to the substance of the work whilst being assisted in detail as to cross-references between Acts and Rules and practice notes, &c., by Mr. A. C. Clauson, of the Chancery Bar. At page 7, we find an epitome of the reasons given in the Lords, as showing that the alleged illegality of one-man companies does not exist. Among these, “ The statute does not expressly or impliedly impose any limit upon the number of shares which a single member may subscribe for;” And if the holders of the six shares are in fact trustees for the seventh person who holds all the rest, this makes no difference; “ There is nothing in the Act requiring that the subscribers shall be independent or unconnected, or have a substantial

[ocr errors]


interest, or have a mind and will of their own, or that there should be anything like a balance of power in the constitution of the court." The preface to this volume (from which we make some extracts in our leading columns) is an instructive comment on the growth of case law on the Companies Acts. The volume itself is a necessary work to all judges and practitioners who have anything to do with the complicated legislation with which it deals.

the extent of £600, of which he had only received £135. He also undertook to underwrite 100 £1 shares in a company, but failed to do so, and he was now liable for £110 in connection with the transaction. His failure was attributable to losses in connection with these speculations, and his deficiency was increased by borrowed money and heavy interest thereon. Some further evidence having been given, the examination was ordered to be concluded,


BOOKS RECEIVED. Buckley on the Companies Acts. Seventh Edition. Stevens and Haynes, Bell-yard, Temple Bar.

Garrett's Law of Nuisances. Second Edition. William Clowes and Sons Limited, 27, Fleet-street. Price 20s.




own use.

In the Queen's Bench Division, on the 1st inst., before Cave and Wright JJ., Hollams presented the report of the Statutory Committee of the Incorporated Law Society against Samuel Brittle, a solicitor, admitted in 1871. The charges which were found to be proved were twofold-(1) that the solicitor obtained a sum of £500 from the complainant, Rev. E. P. Doudney, of All Saints' Rectory, Wainfleet, formerly curate of St. George's Church, Nottingham, upon the representation that he had a good security upon which to invest it, and concealed from him the fact, which he (respondent) well knew, that there was a prior mortgage on the property which formed the security; and (2) that the respondent subsequently, and without the knowledge or authority of the complainant, received the principal money, but, by continuing the payment of interest and by a letter of the 9th Jan. 1895, represented that the mortgage was still in existence, and fraudulently misappropriated the amount to his

Stanger, Q.C. appeared for the solicitor, and, while admitting that there was professional misconduct, urged that the concealment of the prior mortgage was not really a very serious matter, especially as it was done, not in the interest of the solicitor at all, but in that of another client, who was in want of £500. Coming to the more serious charge, he stated that the £500 had been received, not as one lump sum, but by instalments from time to time. The solicitor had unexpectedly found himself in difficulties for money through being security for others, and had yielded to the temptation as the moneys came in. He had not been guilty of extravagance or waste. The solicitor now thought that he might be able to refund the money.

The Court held that the solicitor, Mr. Samuel Brittle, of St. Peter's. chambers, Nottingham, must be struck off the rolls, but with this intimation—that he should be at liberty to apply at the end of two years for readmission; and if he could, at the expiration of that time, produce evidence of general good character, and could show to the satisfaction of the court that he had reduced the amount for which he was liable, the court would be likely favourably to consider such application.

[ocr errors]

at 9



| Madeley,* Wednesday, at 10 Abergavenny, Monday, at 10

Malmesbury, Monday Andover, Friday, at 11.30

Malvern, Friday, at 10 Ashborne, Wednesday, at 10

Manchester, Monday, Tuesday, Wednes. Ashford, Monday, at 10

day, and Friday, at 10 Aylesbury, Wednesday

Mansfield, Monday, at 10
Bakewell, Tuesday, at 10

March, Monday, at 10
Barrow-in-Furness, Friday, at 9.45 Market Drayton,* Saturday, at 10
Basingstoke, Monday, at 11.30

Market Rasen, Saturday, at 10
Bath, Thursday, at 10

Matlock, Thursday, at 10 Bedford, Thursday, at 10

Melton Mowbray, * Friday, at 11 Biggleswade, Monday, at 10.30

Merthyr Tydal, Friday Birkenhead,* Friday, at 10

Middlesbrough, Monday, at 10 Birmingham, Monday (Adj.), Tuesday Narberth, Tuesday

(Adj.), Wednesday (adj.), Thursday Newbury, Wednesday (Adj.), and Friday (Adj.), at 10

Newcastle-on-Tyne, Monday, Tuesday, Bishop Auckland, Tuesday and Wednes- Wednesday, Thursday, and Friday day, at 10

(Bky and J.S.), at 10 Blackburn, Monday, at 10

Newnham, Wednesday Blackpool, Wednesday, at 10

Newport (Mon.), Thursday, at 10.30; Blandford, Friday, at 10

Friday, at 11 Bolton, * Wednesday, at 9.30

Newport Pagnell, Friday Bourne,* Monday, at 1

Northampton, Tuesday (Reg., Bky), at 12; Bow, Monday and Friday

Wednesday, at 10 Bradford (Yorks),* Tuesday and Friday, North Walsham. Friday, at 11.30 at 10

Northwich,* Wednesday, at 10 Bridgend, Thursday

Oakham,* Thursday, at 10 Brigg, Friday, at 10

Oldham,* Thursday, at 9.30 Brighton,* Friday, at 10

Oswestry,* Thursday, at 10 Bristol, Monday, Tuesday, Wednesday, Oxford, Thursday, at 10

and Thursday, at 10: Friday (Bky), at ii Pembroke Dock, Wednesday Brompton, Monday, Tuesday, Thursday, Plymouth,* Wednesday and Thursday, and Friday

at 10 Bungay, Tuesday

Pontypool, Wednesday, at 10 Burnley,* Thursday (R.), at 10

Portsmouth, Thursday, at 12 Burslem,* Thursday, at 9.30

Preston, Tuesday, at 10 Bury,* Monday, and Wednesday (Reg.), Reading, Thursday

Redhill, Wednesday, at 11 Carmarthen, Friday

Ripon, Saturday, at 9.30 Chapel-en-le-Frith, Monday, at 10.30 Rochdale, Friday, at 9 Chelmsford, Monday, at 11

Rochester, Tuesday and Wednesday, Chesham, Monday

at 9.30 Chesterfield, Friday, at 9.80

Rugby,* Thursday, at 10 Chorley, Thursday, at 9.30

Runcorn,* Tuesday, at 10 Cirencester, Thursday

St. Helens, Wednesday Clerkenwell, Monday, Tuesday, Wednes- Salford, Wednesday (Reg., Bky), at 2.30; day, Thursday, and Friday

Thursday, at 10 Colchester, Tuesday, at 11

Salisbury, Thursday, at 10 Coventry, Tuesday, at 9.30


Tuesday Croydon, Tuesday

Shaftesbury, Wednesday, at 11 Daventry,* Friday, at 10

Sheffield, Thursday and Friday, at 10 Derby, Tuesday (Reg., Bky), at 10

Shoreditch, Tuesday and Thursday Devizes, Monday, at 10

Shrewsbury, Monday and Tuesday, at 10 Dewsbury, Tuesday, Wednesday, Thurs- Skipton,* Wednesday, at 9.45 day, and Friday (J.S.), at 10

Southam,* Saturday, at 10 Dorcaster, Thursday, at 10

Southampton, Tuesday, at 11 Dudley, * Tuesday, at 10

Southend, Thursday, at 11 Durham, Tuesday (Reg., Bky)

Southport, Tuesday, at 10 Dursley, Friday

South Shields, Thursday, at 10 Easingwold, Thursday, at 10

Southwark, Monday, Tuesday, and ThursEastbourne, Thursday

day, at 10.30 East Retford, Wednesday, at 11

Spalding, Monday, at 11.30 East Stonehouse,* Monday, Tuesday, and Stamford,* Wednesday, at 1 Friday, at 10

Stourbridge, Wednesday and Thursday, Edmonton, Friday and Saturday, at 11

at 10 Ely, Tuesday, at 10.30

Stratford-on-Avon, Monday, at 11.30 Falmouth, Friday, at 10

Sunderland, Thursday (Reg., Bky) Faversham, Friday, at 10

Swindon, Tuesday, and Wednesday (J.S. Flint, Friday

and Reg., Bky), at 10 Gloucester, Tuesday

Tadcaster, Wednesday, at 10 Grantham,* Tuesday, at 10

Tavistock, Saturday, at 10 Great Grimsby, Tuesday, and Wednesday Thorne, Friday, at 11 (Reg., Bky), at 10

Tredegar, Tuesday, at 9.30 Greenwich, Friday, at 10.30

Trowbridge, Friday, at 10 Hanley, * Tuesday and Wednesday, at 9.30 Tunstall.* Friday, at 9.30 Hastings, Monday

Wakefleld, Tuesday, at 10 Haverfordwest, Thursday

Walsall,* Thursday, at 10 Haverhill, Friday, at 9.30

Walsingham, Wednesday, at 11 High Wycombe, Tuesday

Wandsworth, Monday Hinckley,* Saturday, at 10

Warwick,* Wednesday, at 10 Huddersfield, Monday (Reg., Bky), at 10 Wellington (Salop),* Friday, at 10 Hull,* Monday, Wednesday, Thursday, Westbromwich,* Wednesday, at 10 and Friday (Bky)

Westminste:, Tuesday, Wednesday, ThursKendal, Thursday, at 12

day, and Friday Kettering, Monday, at 10

Weymouth, Monday, at 10 Knaresbrough, Friday, at 10

Whitechapel, Tuesday, Wednesday, ThursLaunceston, Tuesday, at 10

day, and Friday Leeds, Monday, Wednesday, Thursday, Widnes, Friday and Friday, at 10

Wigan,* Tuesday and Saturday, at 9.30 Leighton-Buzzard, Thursday

Wimborne, Tuesday, at 10 Lewes, Tuesday

Winchester, Monday (Reg., Bky and Liskeard, Monday, at 10

Wednesday, at 11 Liverpool, Monday, Tuesday, Wednesday, Winsford,* Thursday, at 11

and Thursday, at 10; Friday (Bky and Wolverhampton,* Monday and Friday, Adm.), at 11

at 10 Llandilo, Monday

Woodstock, Friday, at 11 Llandovery, Saturday

Woolwich, Wednesday, at 10.30 Longton,* Monday, at 9.30

Worksop, Tuesday, at 10 Louth, Thursday, at 10

Wymondham, Saturday, at 10.30 Lowestoft, Wednesday

Yarmouth, Thursday and Friday Lynn, Thursday, at 10

York, Tuesday, at 9.30. . Other sittings are specially fixed if necessary.

Hollams also moved in the matter of Thomas Haddon Trigg. In this case, the report of the committee found that Mr. Trigg received a sum of £1250 from clients for investment, and represented that it had been duly invested, while in fact the only security was a mortgage for £1000; and that he fraudulently misappropriated the whole £1250 to his own use, and only replaced it under pressure. It was also found that, in respect of another sum of £600, received on account of other clients in repayment of a mortgage, he concealed the fact of such repayment and misappropriated the amount to his own use, and only refunded it under pressure. The committee found him guilty of professional misconduct, and

The COURT directed that the name of Thomas Haddon Trigg, lately practising at Great Driffield, but now residing at Scarborough, be struck off the rolls.

[ocr errors][merged small]

In Bankruptcy, on the 2nd inst., before Mr. Registrar Linklater, a sitting for public examination was held under the bankruptcy of Walter Thompson, described as of 12, Pancras-lane, E.C., solicitor. The statement of affairs showed liabilities £4734, of which £2842 were expected to rank, with assets £184. Mr. C. A. Pope attended as Assistant Official Receiver. In the course of his evidence the debtor stated that he was admitted a solicitor in 1890, and in the following year he began to practise at 137, Cheapside. He had no capital of his own, but was financed by his father. In June 1895 he entered into partnership with another solicitor, who brought in £200 capital, and paid £100 by way of premium. The firm was dissolved in Sept. 1896, by mutual consent, the debtor taking over the assets and liabilities. In June 1891 he became acquainted with the owner of a patent for a blacking powder, and advanced him about £300. In 1894 he became connected with a builder, and financed him to


hoods been assailed by the clever cross-examination of Mr. Thomas, there might have been a gross miscarriage of justice. The case should not, and cannot, end here. His Honour eventually made an order for the payment of the costs by the next friend, reserving the question whether the solicitor should be made to pay them if the next friend failed.

On Thursday the case was again mentioned, and an application made for the payment of the costs by the solicitor. The solicitor, Mr. S. Benham, was in attendance, and said that he had left the entire charge of the case in the hands of Taplin. The “next friend” was not produced, the only explanation being that he was travelling in the country, and could not be reached.

His Honour said that he greatly regretted that be was unable to order the solicitor to pay the costs personally, as if he had had the power he undoubtedly shonld have done so. The solicitor was only an officer of the High Court, and not of the County Court, and, therefore, he was powerless to make the order.

THE NEW COUNTY COURT RULES. A NUMBER of solicitors practising in the Birmingham County Court met in the solicitors' room at the court on the 25th ult., for the purpose of discussing the new County Court Rules, to which reference was made at the meeting of the Birmingham Law Society on the previous Wednesday,

Mr. I. Bradley was voted to the chair, and in opening the proceedings, said the impediments which the new rules placed in the way of recovering debts from persons resident in a different district from the plaintiff would press especially hard on Birmingham, inasmuch as its manufacturers and tradesmen supplied very large quantities of goods to shopkeepers and retailers to all parts of the kingdom. It was as old a principle as any in jurisprudence that the person instituting a proceeding had the first right to choose the tribunal to which he would appeal, and another equally wellestablished principle was that a man whɔ owed an obligation should discharge it; therefore it would be a greater hardship to impede the plaintiff in recovering his debt than to impose any difficulty on the debtor in meeting the case.

In the course of a lengthy discussion which ensued, Mr. D. Cochrane said that, whilst the effect of the new rules would be to diminish the volume of practice in the Birmingham County Court, it would likewise infiict a great hardship on local manufacturers and tradespeople ; therefore he suggested that steps be taken to bring the matter before both the Law Society and the public.

Mr. Walthall complained that the Incorporated Law Society had failed in its duty towards the Profession, inasmuch as the president of that institution was a member of the Rule Committee, and had himself signed the new regulations.

Mr. A. H. Coley expressed the opinion that the particular rule to which exception was taken was ultra vires.

Eventually the following resolution was adopted, on the motion of Mr. Walthall, seconded by Mr. Adcock : “That this meeting of solicitors practising in the Birmingham County Court, believing that the new County County Rules answer no useful purpose, but are vexatious and unnecessary, and that their operation will impede the recovery of just debts, and throw unnecessary expense and trouble on plaintiffs, respectfully urges the Rule Committee to suspend the operation of the rules pending further inquiry into the matter.

It was further resolved, on the motion of Mr. Cochrane, seconded by Mr. Cohen, “That a copy of the foregoing resolution be sent to the Birmingham Law Society, with a request that they take the necessary steps to bring it before the Rale Committee and such other authorities as they think proper.”


SOLICITORS AND THE PREPARATION OF CASES. His Honour Judge Emden and a jury were on Thursday, the 25th ult., engaged at the Lambeth County Court in hearing an action under the Employers' Liability Act, in which a youth named William Wheatley (suing by Henry White, his next friend) claimed £100 for personal injuries from Mr. Wix, the proprietor of the Studholm Steam Laundry, Studholm-street, Peckham.

Wilde, barrister, appeared for the plaintiff, and Lewis Thomas for the defendant.

The plaintiff was employed in the laundry, and on the 22nd July he was engaged in baling out hot water from a cistern. A plank had been placed across the top for the person doing the baling to stand upon, and the plaintiff alleged that the air became so clouded with steam that he stepped off the plank into the cistern of boiling water, and sustained serious injuries. After the witness had given a circumstantial account of the accident, Lewis Thomas entered into a long cross-examination of the youth, and elicited several damaging admissions, and in the end the youth declared that he did not fall into the tank. Wilde thereupon intimated that he must withdraw from the case.

His Honour, in giving judgment for the defendant, said that undoubt. edly some further steps should be taken.

The plaintiff, being further questioned by Lewis Thomas, said his aunt arranged about the action with a Mr. Baldrey. As to the “next friend,” the plaintiff confessed he did not know who Mr. Henry White was. He had never been acquainted with him. The plaintiff, repeatedly asked wbat arrangements had been come to with his solicitor, Mr. S. Benham, with regard to the damages, if recovered, persisted in saying “ I don't know.”

Mrs. Maria Gardner, the plaintiff's aunt, stated that she had not paid Baldrey or anybody else money with which to cover the costs of the action, nor had she ever heard of Henry White before the case came into court. She would not admit that she first met Baldrey by answering an advertisement of the Legal Aid Society, in a newspaper. It was Mr. Baldrey who put the case in Mr. Benham's hands.

Mr. Charles Taplin, managing clerk to Mr. Benham, produced the instructions he received to prepare the case. They were given him by Mr. Baldrey. As to Mr. White, he was a gentleman who for some time lived with witness. Baldrey was the clerk to a conveyancing solicitor, but the witness positively declined to reveal the name of his employer, though he agreed that the address was Pitt-street, Camberwell.

His Honour.—This case throws a strong light upon the inner workings and methods of preparing for legal proceedings. Under the Employers' Liability Act large numbers of actions are brought, most of which are settled without coming into court. Whether that is due to the plaintiffs' not feeling that they are likely to succeed I do not know. Here is a case in which a youth, fully able to understand the enormity of the crime of perjury, comes into court and presents a cunningly prepared fabric of falsehoods-80 cunningly prepared, in fact, as to fit in exactly with the re. quirements of employers' liability law. Had not the lad's string of false.

At the Ludlow County Court, on the 11th Nov. 1896, his Honoar Judge
Lea gave judgment in the case of Boon and Meredith v. Adney.

Claim for an injunction and damages £5 58.
Graham (counsel) for plaintiffs ; Cottam for defendant.

His Honour.--In the year 1860 Francis Bursnell built a terrace of seven houses at Ludlow, which were known as Nos. 1, 2, 3, 4, 5, 6, and 7, Gravel Hill-terrace. Between Nos. 2 and 3 there was an arched passage running through the terrace to the gardens at the rear of the terrace. There was a path from the back of this passage leading to the back entrances of the several houses. At the end of this passage and straight in front of it and in the gardens of Nos. 2 and 3 about four yards from the back walls of Nos. 2 and 3, and not adjoining either of such houses or any of the houses, was erected a small brick shed with a slate roof, the door of which faced the passage and abutted on the little path at the rear of the houses. On the same path, but opposite No. 5 and on the path itself, is a pump. At the end of the gardens of Nos. 3 and 4 were some closets, and at the back of the closets an ashpit, and these closets and ashpits are used by the tenants of Nos. 2, 3, 4, and 5, with ways of ingress and egress from the gardens of Nos. 2 and 5. Francis Bursnell built the whole of the seven houses about the year 1860 on his own ground. He lived in No. 1, Gravel Hill-terrace, and owned and let all the other six houses up to the time of his death on the 30th Dec. 1879. By his will, dated the 22nd Dec. 1876, Francis Bursnell bequeathed the seven houses, with the gardens, outbuildings, and appurtenances to bis wife Sarah Bursnell for her life, and after her death he devised No. 1, with the garden, meadow land, outbuildings, and appurtenances, to his granddaughter Ellen Bursnell for her life, Nos. 2 and 3 with the gardens and appurtenances to his granddaughter Phillipa Sarah Bursnell for her life, No. 4 with the gardens and appurtenances to his granddaughter Jane Bursnell for her life, No. 5 with the garden and appurtenances to his granddaughter Caroline Bursnell for her life, and Nos. 6 and 7 to his grandson John Barsnell and his granddaughter Mary Ann Lumber for their lives respectively. The plaintiff Phillipa Sarah Boon, then Phillipa Sarah Bursnell, married Frederick Boon on the 15th Oct. 1881. Sarah Bursnell, the widow, married James Passey on the 21st Sept. 1882, and died on the 1st Jan. 1888. By an indenture dated the 2nd April 1888 the plaintiff Phillipa Sarah Boon conveyed No. 2, Gravel Hill-terrace, to James Passey for the joint lives of James Passey and herself subject to a yearly rentcharge of £1. James Passey died on the 8th Oct. 1895. The defendant, Emma Adney, became tenant of No. 5 in the year 1887, and by deed dated the 14th Oct. 1895 purchased the life interost of Caroline Bursnell in this house. It was admitted, on behalf of the plaintiffs, that prior to the 1st Jan. 1888, when Sarah Passey died, all the tenants of Nos. 1, 2, 3, 4, and 5 used the small outhouse in question as a washhouse, and it was further admitted that there was formerly a table hung up in the outhouse assigning to the tenants of each house one day in the week on which they might respectively use this building for washing purposes. The building still contains a boiler, and a bench on which washing can be done. The plaintiff, Mary Meredith, took No. 2 from the then tenant Lewis on the 25th March 1896, and was Lewis's tenant for six months, and on the 29th Sept. 1896 became tenant to the plaintiff, Mrs. Boon. The defendant Emma Adney said she had used the outhouse as a washhouse on one occasion, namely, in February or March 1888, after Sarah Passey's death, on the 1st Jan. 1888, and thought she had used it one other time, but did not use it again till she went on the 25th Sept. 1896 and drew the staple on parpose to try the right. She has now her own washhouse at the back of her own house, and although, when she purchased in Oct. 1895 she said she had no notice from anyone that the right was disputed, it is evident that she has bad and has very little use for this outhouse. But Ann Humphries, a servant of Mrs. Mason, the tenant of No. 4, who had lived with Mrs. Mason for eleven years from March 1885, said that she bad on behalf of Mrs. Mason used this outhouse for washing once every three weeks during the whole of this period, and that she was never interfered with until shortly after Mr. Passey's death, in Oct. 1895. She also produced two receipts for small sums for repairs done to the wash house, and paid for by Mrs. Mason and another tenant. It was also proved that in Nov. 1895 certain small repairs to the washhouse were done on behalf of Mrs. Boon, and paid for by her. The plaintiff, Mary Meredith, said that when she became tenant Lewis told her she had a right to use this outhouse as a place in which to store coal and wood, and that she had better keep the door locked, and she used it for this purpose, and fastened the door. The defendant, Emma Adney, for

« EelmineJätka »