« EelmineJätka »
are difficult to comply with. The existing form of affidavit is quite complicated enough, but if the new rules come into force the trouble to plaintiffs and their solicitors will be very much increased. The preliminary affidavits contain, in an action under £5, no less than nine paragraphs, and in an action over £5 no less than eight paragraphs.
We would point out that, whereas in the case of an action commenced in the High Court it is possible to issue a writ for any sum of money not less than £20 in any registry the plaintiff may select without any affidavit, yet a County Court action for £1 or £50 can only be commenced by complying with the rules we have referred to.
It is submitted that if any alterations are to be made in the existing County Court rules they should be made to simplify procedure, and make it more easy to commence actions (and there is plenty of room for improvement), rather than complicate the procedure and make it much more difficult to institute proceedings as will be done by the proposed new rules.
The council of the Bristol Incorporated Law Society object to the proposed rules on the above grounds, and they believe such rules will materially interfere with the usefulness of the County Courts, and will very much hamper the mercantile community in recovering debts through the medium of these courts, and the council would emphasise the fact that, whereas the County Courts were established for the purpose of more easily recovering small debts, these rules will have the opposite effect.
Courts Act, the object of which was to afford tradesmen or creditors a cheap, expeditious, and easy way in wbich to recover payment of debts. His Honour, perhaps, realised more fully than the other judges on the committee apparently did, the necessity of doing what they could to increase the good work which County Courts had done in the past.
His Honour Judge Martineau said he was, in a few days, going to attend a meeting of the Rules Committee, called for the purpose of revising the rules. He could not say what course he should take on that occasion, but he agreed with every word Mr. Buckwell had said. He thought the present affidavit perfectly clear, and one which could be filled up by a layman without the slightest difficulty. In its proposed new form it could not be filled up by a layman himself, and he must necessarily go to a lawyer for assistance, or get the registrar's clerk to fill it up for him. In some cases even the registrar's clerk might be incompetont to do so. He was satisfied that it would be almost impracticable for an ordinary layman to fill up that affidavit, clear and intelligible as it was to a lawyer. He did not think it was at all desirable that a plaintiff, seeking to recover money justly, should be in any way hampered or driven to go to a lawyer for assistance. In respect of the other matter, namely, the deposit, he also agreed that to call upon a plaintiff who probably had a just claim for security for costs was a novelty. He regretted very much that when the matter came before him he was not so fully alive as he ought to have been to the possible hardship inflicted on plaintiffs if the affidavits in the suggested form were allowed to stand ; or, still more, if money had to be deposited for security of costs. So many public bodies at Birmingham and elsewhere had remonstrated against the new rules, that the Lord Chancellor, anxious to assist the superintendents of County Courts, had suspended the passing of the rules so that they might be more fully considered. The registrar of that court had supplied him with some important statistics, which he should place before the committee. In the past year there were 1714 actions brought in that court against defendants residing out of the jurisdiction, and the registrar gave leave to the plaintiffs to proceed for the recovery of debts in that court. Thirty-four only of that number were defended. In 1706 cases out of 1714 the plaintiff had a just claim. The greatest care should be taken not to deprive a plaintiff suing in that court of his rights by casting a burden upon him, for in such case he would, in all probability, prefer to abandon his claim. A number of letters had been received from registrars of other courts pointing out the great hardships the new rules would involve to suitors, and he had no doubt these complaints would be fully considered by the Rules Committee.
Mr. Buckwell : I am very much obliged to your Honour.
MEETING OF SOLICITORS AT LEEDS. The new rules for regulating County Court procedure, which are about. to come into force, were discussed on Thursday, last week, at a meeting of Leeds solicitors, held at the offices of Messrs. W. and E. H. Foster, in Albion-street. Mr. Walter Foster presided, and those present included Messrs. H. Bedford, H. B. James, J. W. Bointon, Benson Bailey, L. Whitaker, C. Scriven, H. C. Bowling, W. H. Saville, J. Wade, F. W. Goodall, M. Wilkinson, F. Blackston, J. H. Milner, E. F. Morgan, A. E. Evans, H. Turner, W. E. Farr, G. Whittington, J. H. Armitage, and E. H. Foster.
Mr. H. C. Bowling said the tendency of the rules undoubtedly was to impede the recovery of debts due, by putting the persons who owed the debts on a pinnacle of advantage. He moved : “That this meeting of solicitors practising in the Leeds County Court, believing that the new County Court Rales under Order 1. ensure no useful purpose, but are vexatious and unnecessary, and that their operation would impede the recovery of just debts, and throw unnecessary trouble and expense on plaintiffs, respectfully urges the Rule Committee to suspend the operation of the rules pending further inquiry into the matter."
Mr. C. Scriven seconded the resolation, which was carried unanimously. It was agreed, on the proposition of Mr. Scriven, that copies of the resolution be forwarded to each member of the Rule Committee, the members of Parliament for the city of Leeds, the secretaries of the Incorporated Law Society and the Leeds Law Society, and the President of the Leeds Chamber of Commerce.
On the motion of Mr. Benson Bailey, seconded by Mr. E. H. Foster, the following farther resolution was adopted: “That as to rule 14 of Order V., it be suggested to the Rule Committee that in case the rule be retained, power be given to the society to accept the undertaking in writing of the plaintiff's solicitor in lieu of a monetary deposit, and that this resolution be sent only to the Leeds Law Society, to be used by them as a last resource.
Mr. E. H. Foster having been requested to act as secretary, the meeting closed with a vote of thanks to the chairman.
COMMENTS ON CASES.
TRUSTEES are as a rule entitled to one set of costs out of the trust estate, and if they employ separate solicitors in proceedings relative to the trust are prima facie wrong in so doing. But in Re Isaacs ; Cronbach v. Isaacs (75 L. T. Rep. 638 ; (1897) 1 Ch. 251) the Court of Appeal, in a case where trustees had severed in administration proceedings, held that it would be going too far to deprive a trustee, who had put his own name on the record and subsequently employed other solicitors, of his costs without giving him an opportunity for explanation. And it appearing on the evidence that he had been directed to personally get in some of the assets, the taxing master, by whom the apportionment in these cases is usually made, was directed to allow him costs in respect of work actually done by him, but the Court allowed neither trustee the costs of the appeal from the order of the learned judge in the court below : (cf. Dan. Ch. Prac. 506, 1208, 1209, 6th edit.).
On Friday last week, at the Brighton County Court, Mr. J. C. Backwell, solicitor, at the request of several of his professional brethren, drew the attention of his Honour Judge Martineau to the new County Court Rules which are to come into force in May. He asked the help of his Honour, as a member of the Rules Committee, in the matter. There were two things in the new rules, which they, as professional men, objected to, namely, as to the new form of affidavit, and the deposit. At the present time, said Mr. Buckwell, a plaintiff bad to make an affidavit showing how he brings jurisdiction within the Brighton Court or any other court in which he wished to issue a summons. The present rales were trouble enougb and annoyance already to plaintiffs, causing a deal of extra bother, and effecting very little good. So complicated was the proposed new affidavit, however, that if it came into force be doubted, very strongly whether any layman could fill up one himself. Mr. Jennings, he was afraid, would have to employ three or four more clerks in order to fill up the affidavits, or else plaintiffs would have to go in for the luxury of employing a solicitor. The rights of defendants were protected under the present affidavits. Touching upon the subject of the deposits, Mr. Buckwell said a defendant who lived twenty miles away from court could, as things were at the present time, get a deposit for the security of costs that was quite sufficient for his or her protection.
There were many people who issued summonses in the Brighton County Court against those who resided at a distance from the court, who would particularly feel the new rule as to the deposit. If every poor plaintiff who had a difficulty to find the money to take out a summons and to pay the hearing fee as well, had, in addition, to provide sufficient money to pay the travelling expenses of bis debtor from the place where he resided, it would be practically a denial of justice to many people in Brighton. Out of every one hundred cases, ninety-nine were absolutely good and bono, fide, and he considered it would be a great hardship on a poor plaintiff and a source of annoyance to tradesmen, that they should have to make this deposit from time to time. Anything of that sort, affidavits or deposits such as proposed, would tend to enhance the costs of recovering debts in the County Court, and would make it more troublesome to obtain repayment. The two rules to which he referred were absolutely against the spirit of the Coun
When by the operation of the Local Government Act of 1888 a slice of land is carved out of an urban district's area and is added to the area of another urban district “subject to the rights, liabilities, and obligations” attaching to the first-named district's council in relation to it, a water authority entitled to supply water to the district whose area has become thus enlarged is able legally to extend its pipes into the added territory without giving notice under the Public Health Act of 1875 to the water authority which previously supplied the added district. Such an extension is not the construction of new waterworks although "waterworks” have been defined by sect. 4 in a very general and comprehensive manner. The two chief cases relating to what circumstances constitute the construction of waterworks are West Surrey Water Company v. Guardians of Chertsey Union (71 L. T. Rep. 368; (1894) 3 Ch. 513) and Cleveland Water Company v. Redcar Local Board (1895) 1 Ch. 168). The first of these was a case where a sewage authority laid down pipes and forced water from the river Thames through them for the purpose of flushing them. It was sought on behalf of a water company to restrain this on the ground that they were entitled to serve them with the necessary water and that these Acts infringed their monopoly of supply. Held, however, by Mr. Justice North that these facts did not imply the “construction of waterworks,” and that no infringement of the water company's rights had been shown. The second case was one where a local board had enlarged very materially their reservoir accommodation in order to supply a properly purified water. A water company attempted to restrain this as being the “ construction of waterworks" but Mr. Justice Chitty held that this was only an addition to existing works and not the introduction of new ones. Mr. Justice North relied on this decision in his judgment in the case under review.
A POLICY of insurance depends for its value on the person who keeps up the premiums, so that a gift of a policy on the donor's life, though it may
have a surrender value at the time, is not a gift of all the money assured, if the donee has to make the future payments. The 17th section of the Succession Duty Act 1853 expressly provides that “no policy of insurance on the life of any person shall create the relation of predecessor and successor between the insurers and the assured or between the insurers and any assignee of the insured
but any disposition or devolution of the moneys payable under such policy if otherwise such as in itself to create a succession within the provisions of this Act, shall be deemed to confer a succession.” According to the editors of “ Hanson's Death Duties” (4th edit., p. 556), if the owner of a policy of assurance on his own life gratuitously assigns it, and pays all the premiums on it, succession duty is payable on his death. If the assignee pays some of the premiums, then duty is payable pro tanto in proportion to what the assignor paid. In the recent case of Lord Advocate v. Robertson (noted ante, p. 386), the owner, who had paid premiums on it for several years, assigned a policy on his life gratuitously to his daughter in 1883. She paid the premiums on it until 1890, when the father died. The House of Lords have decided that no succession duty was payable on it. Account duty was also claimed. By the Amending Act of 1889, s. 11, account duty is payable on money received on a policy of assurance where the assured died on or after the 1st June 1889, and the policy has been kept up by him for the benefit of his nominee or assignee, or on a proportionate part of such money where he has partially kept it ap for such benefit. After the assignment in the case on which we are commenting the father had not even partially kept up the policy, so the Lords have declared that the policy moneys were not subject to account duty.
A COMPANY can be round-up by the court under sect. 79 of the Act of 1862, (1) in accordance with a special resolution of the company ; (2) when it does not commence its business within a year, or suspends it for a year ; (3) when the members are reduced in number to less than seven ; (4) when it is unable to pay its debts ; (5) when the court is of opinion that it is just and equitable that the company should be wound-up. The ejusdem generis rule may safely be said to have frequently frustrated the aims of the Legislature or persons, who have after narrow terms used wider ones, which the courts have limited to the same class as the narrower ones. Mr. Buckley, in his 6th edit., sums up the effect of the decisions on the 5th clause thus: “The 5th clanse, although thus worded in order to include all cases not before mentioned, cannot be interpreted otherwise than in reference to matters ejusdem generis as those in the previous clauses” (p. 215). Re Thomas Edward Brinsmead and Sons Limited (noted ante, p. 387) before Mr. Justice Williams and the Court of Appeal will be known to company lawyers as having broken through this limited interpretation of the 5th clause. The company had been formed with the deliberate intention of deceiving the public by the resemblance of their name to that of the old-established firm of John Brinsmead and Sons. Mr. Justice North had granted an injunction restraining them from using the name of Brinsmead without clearly stating that they had no connection with the old firm. The Court of Appeal have declared that, if there was a case in which it was just and equitable to wind-up a company, that was the case.
The Lord Chancellor has consented to preside at a meeting in support of the Inns of Court Mission in Central London, to be held at the Inner Temple Hall on Wednesday, the 31st March, at 4.30 p.m.
Mr. Justice Kekewich will preside at the annual meeting of the Discharged Prisoners' Aid Society, which will be held in the Council Chamber of Lincoln's-inn on Tuesday, the 30th inst., at 4.30.
Lord James of Hereford will preside at the annual general meeting of the Liberal Union Club, which will be held at 6, Great George-street, Westminster, on Tuesday, the 30th inst., at 4.30.
Lord Macnaghten, Lord Morris, Sir A. E. Miller, Q.C., and Mr. Pembroke Stephens, Q.C., were present on Wednesday evening at the 114th anniversary festival of the Benevolent Society of St. Patrick.
Sir Charles Hall's many friends will be glad to hear that he is rapidly recovering from his recent illness in the bracing air of Beaulieu. He was able to be out on Wednesday for the first time.
The annual meeting of the Selden Society will be held in the Council Room, Lincoln's-inn Hall, on Wednesday, the 24th March 1897, at 4.30 p.m. Lord Herschell will preside.
Mr. Alfred James Shepheard, the well-known City solicitor, has been co-opted a member of the London School Board, in succession to the Rev. Dr. Angus resigned. He is well known in Nonconformist circles.
Mr. Edward Dale, of 88, Albion-street, Leeds, has taken into partnership his son, John Edward Dale, who was admitted in 1894. In future the business will be carried on as Edward Dale and Son.
Lord Justice Lindley, sitting in the Court of Appeal, on Tuesday, with Lords Justices A. L. Smith and Rigby, interrupted the hearing of a case by announcing in feeling terms the death of the Right Hon. Sir Edward Kay, who, until a few months ago, was a member of the Court.
Pending the appointment of a preacher in succession to Dr. Wace, the Benchers of Lincoln's-inn have determined to have a series of select preachers at the eleven o'clock service on Sundays in the chapel. The Bishop of London will preach to-morrow.
It is not generally known, says the Westminster Gazette, that Chief Justice Kotze, of the Transvaal, who occupies at present so large a share of the public attention in the conflict between the Executive and the Judicial Bench in that country, is learned in English law. He was for a considerable time a student of Lincoln's-inn and a sedulons attendant at law lectures, although he has not been called to the English Bar.
In the House of Commons, on Monday, Sir A. Rollit asked the Attorney-General whether any opportunity would be afforded the House of discussing the proposed draft new County Court rules, which seriously affected the interests of traders.--The Attorney-General: The operation of the rules has been postponed till May in order to give the County Court judges the opportunity of considering some objections which have been raised.
At the annual statutory meeting of the Middlesex County Council held at the Guildhall, Westminster, on Thursday, the 18th March, Mr. R. D. M. Littler, Q.C., C.B., and Mr. Montagu Sharpe, D.L., were unanimously re-elected chairman and vice-chairman respectively of the county council for the ensuing year. This is the seventh year in succession that these gentlemen have been elected to these posts. Mr Montagu Sharpe was also elected to one of the vacant county aldermanships.
A correspondent writes: In your last Topic of the week of the 13th March, you say that, if a deponent declined to pay any fee, it would not be easy to get it out of him. I remember an old man who used to do little else than “swear.” The oath was administered in a sing-song monotone somewhat thus: “You do swear the contents, &c., are true, so help you? Eighteen-pence, if you please. Half-a-crown I haven't got change ; you must go and get it, and I will keep the affidavit till you do." Does not this answer your query?
His Honour Judge Caillard will shortly be the recipient of a parting gift from the Registrars of the County Court Circuit of which he was so long a period the head. The presentation will consist of a magnificent antique George III. loving cup, decorated with acanthus leaves, and engraved with his Honour's crest, arms, and motto. The cup bears the inscription-“Presented to his Honour Judge Caillard, upon his retirement after thirty-eight years' service, by the Registrars of his Circuit, No. 52. 7th Jan, 1897." The gift is to be made privately.
Mr. Augustine Birrell, Q.C., Quain Professor of Law at University College, finished, last week, the course of lectures he has been delivering on Fraud since December. The lectures have been delivered in the Old Hall, Lincoln’s-inn, for the convenience of members of the Inns of Court. At the concluding lecture Mr. F. Hinde, barrister, at the request of the audience, thanked Mr. Birrell for the interesting and valuable addresses, and the latter in his reply announced that the next course, to be commenced in a week or two, would be on “ Employers' Liability.”
Mr. William Philip Schreiner, Q.C., a witness called before the South Africa Committee on Tuesday, has twice been Attorney-General at the Cape. Born in the colony, of German parents, he graduated with the highest honours at the Cape University, and afterwards at Downing College, Cambridge, where he came out as senior in the law tripos in 1881. He also carried off the Chancellor's medal, and was called to the Bar at the Inner Temple. In 1882 he returned to the Cape, and soon took # place in the front rank of colonial counsel. From 1885 to 1890 he acted as parliamentary draftsman, and from 1883 filled the responsible post of legal adviser to the High Commissioner. He entered the Cape Parliament
1893 in the Bund interest, and be me Attorney-General, with a seat in the Cabinet. He is a brother of Olive Schreiner, the authoress of “The Story of an African Farm.” Mr. Schreiner is married to a daughter of Mr. Reitz, ex-President of the Orange Free State.
On Wednesday last week the Master of the Rolls in Ireland delivered judgment on an extremely curious point of jurisdiction which came before him, of which we give report in another column. An English company of corset-makers sued an Irish company for alleged violation of its trade marks. The defence of the Irish company relied, amongst other matters, on the fact that the plaintiff's trade marks were not properly registered, and counter-claimed that certain letters should be expunged from the plaintiffs' trade marks, and that the register of trade marks should be rectified accordingly. The point was raised on behalf of the plaintiffs that the High Court of Justice in Ireland had no jurisdiction to order the rectification of the register of trade marks, as the Act of Parliament passed in 1883 did not confer the jurisdiction on the Irish or Scotch courts. The Master of the Rolls felt himself constrained, with much regret, to accede to this view. The curious anomaly resulting from this decision seems to be, that the action for the infringement of the trade marks can still proceed in Dublin, while the defence which the defendants desire to raise must be heard in the High Court of Justice in England.
The Lord Chief Justice, one of the judges at the Leeds Assizes returned to London on Tuesday night owing to indisposition. His Lordship was suffering from a severe cold.
Mr. Robert Wallace, Q.C., sat as Commissioner last Wednesday in one of the Courts at the Leeds Assizes, in place of the Lord Chief Justice.
Lord Russell of Killowen has accepted an invitation to dine with the Press Club at the Freemasons' Tavern on the 3rd April.
The Hon. Alfred Lyttleton, M.P., distributed the prizes to the students at Leamington College last Monday.
Lord Halsbury, wbo has been suffering from influenza, has been removed from Dublin Castle to the residence of Lord Ashbourne, and is going on satisfactorily.
The Speaker (says the Daily News) has had the good fortune to discover an interesting contemporary portrait of Sir Thomas More, Speaker of the House of Commons in 1523. The portrait was skied in one of the rooms of the Speaker's House, and was almost black with age. It has been carefully restored, and forms a valuable addition to the unique gallery of the portraits.
possible, to put England on a level with Scotland in that respect. Sir M. W. Ridley, in reply, said that the question would certainly engage the serious attention of the Government. It was not possible, however, to lay stress on the comparison instituted by the hon. member in the question between Scotland and England. The 199 cases in England were cases of prisoners awaiting trial at assizes, and to make the comparison between the two countries complete-a comparison which is impossible with the figures at present available--it would be necessary to take into account the cases dealt with by quarter sessions, and also most of the indictable cases disposed of in courts of summary jurisdiction in England. Captain Pirie also asked the Secretary of State whether his attention had been drawn to the statement in the report on Judicial Statistics 1895, that, out of a total of 358 sentences of imprisonment to be followed by police supervision passed during the year, only thirteen were passed by the judges at assizes, while no fewer than 345 were passed by courts of quarter sessions ; and whether, seeing that this form of sentence increased the difficulty of discharged prisoners obtaining employment, that it also increased the class of habitual criminals, and that it was but sparingly made use of by the judges, he would issue a circular to the courts of quarter sessions drawing their attention to the proportion of these sentences passed by them, and recommending a considerable reduction of their number in the future. Sir M. W. Ridley said his attention had been called to the point and also to the explanation given--namely, that the offences for which this sentence is appropriate for instance, offences against property--are for the most part tried at quarter sessions. He did not think that any such circular as the question suggests was necessary. The sentence of police supervision conld not increase the number of habitual criminals, since it could only be passed on persons who have already shown that they belong to that class, and no doubt it frequently enables a judge to mitigate the severity of the sentence of penal servitude or imprisonment that he would other
NOTES OF RECENT DECISIONS NOT
The second annual smoking concert of the Solicitors' Managing Clerks' Association will be held in the King's Hall, Holborn Restaurant, on Thurs. day, the 25th inst., at 7.30. Amongst the guests who have accepted invitations are the Lord Chief Justice of England, Mr. Justice Vaughan Williams, Mr. Justice Byrne, Sir Walter Phillimore, Mr. F. O. Crump, Q.C., Mr. Joseph Walton, Q.C., Mr. Bramwell Davis, Q.C., Mr. H. T. Eve, Q.C., Mr. Wheeler, Q.C., Mr. Astbury, Q.C., Mr. Wreford Budd, and Mr. Frank Russell. An excellent programme has been provided. The President, Mr. F. T. Davies, will occupy the chair.
The Lord Chancellor will visit Derby on the 9th prox. for the purpose of inaugurating new County Court offices in that town. The offices have been erected in St. Peter's Churchyard, and the business of the County Court and other public departments will in future be transacted in them. It has been observed, in connection with Lord Halsbury's approaching visit, that it will derive special interest from the fact that 1897 is the jubilee of the County Court system, which was inaugurated in 1847 through the energy and technical knowledge of the late Lord Brougham. Every effort will be made to give the Lord Chancellor an appropriate reception at Derby upon the occasion of his visit.
Judges in this country frequently appear on extra-judicial occasions in their state robes, such as attendance at levees, services at St. Paul's Cathedral, Mansion House banquets, and other ceremonials. Indeed, until the time of Lord Denman, who was the first judicial dignitary to depart from the custom, judges wbo were members of the House of Lords invariably appeared in that assembly in their robes. Sir Peter O'Brien, the Lord Chief Justice of Ireland, has found a novel substitution for judicial costume. Recently when entertaining the Lord Lieutenant of Ireland and Lady Cadogan at his residence in the Co. Kildare, the Chief Justice appeared at a ball given by him in honour of the Viceroy in the full dress costume of a member of the Kildare Hunt.
The annual meeting of the Society of Comparative Legislation was held in the Old Hall at Lincoln's-inn, on Wednesday, the 10th inst. Lord Herschell, who presided, summarised the work done by the society and its committees during the past year, and stated that the first number of the journal had been warmly welcomed by those who were qualified to appreciate work of that kind. At the same time, it was hardly satisfactory to find that of the subscribing members of the society only a little more than half were drawn from the United Kingdom. Mr. Crackanthorpe, Q.C., and other members of the society having spoken, the report as presented by the chairman was adopted; and it was resolved that further efforts should be made to obtain the support of the Legal Profession. Among those present at the meeting were Sir R. Herbert, Sir C. Ilbert, Sir Raymond West, and Mr. Whitley Stokes.
To the Legal Musical Society belongs the credit of securing the largest audience at any social gathering in connection with the Profession. Their concert on the 12th inst. at the Grand Hall, Freemasons' Tavern, was a great success : the place was packed, and scores either went into the gallery, or had to return home unable to secure a seat. Half-past seven was the time fixed to commence, but as it neared eight a prominent official was heard to exclaim “Where the dickens is the chairman ? The response soon came in the person of Mr. H. F. Dickens, Q.C., walking up the hall with Messrs. T. T. Bucknill, Q.C., M.P., H. P. J. Warburton, J. P. Grain, Frederick Low, Travers Humphreys, C. O. Humphreys, W. Arnold Statham, and others. An admirable programme had been provided, includ. ing such talent as Mr. Walter Churcher, Mr. James Budd, Miss Edith Miller, Miss Harriett Boutall, &c. The secret of the success of the Legal Musical Society is to be found in such officers as Messrs. Chilcott, Wood. ward, Smeed, Herapath, and Rimbault. Among those present were Messrs. Ashby, Barlow, Pleasance, Offer, Peacock, Sully, Powell, Crane, Dunnett, and Godfrey Gough. The next and last concert of the session will take place on Wednesday, the 7th April.
A Hanwell druggist was summoned at Brentford Police-court, on Saturday, for selling a preparation of “glycerine and lime juice,” which was not of the nature, substance, and quality demanded. Walter Tyler, the inspector under the Food and Drugs Act, said that he purchased from the defendant a preparation of glycerine and lime juice, which, upon analysis, proved to contain no glycerine. He added that he did not wish to prejudice the defendant, but he was bound to say that this was a very common fraud on the public. Mr. Edward Beaven, the public analyst for the county of Middlesex, said that there was absolutely no glycerine in the sample submitted to him. Cross-examined by Mr. Davies, who represented the defendant, the witness said that the sample contained some vegetable oil and an alkali, the substances necessary to form glycerine. In this the process known as saporification had not taken place, and there was, therefore, no glycerine in the sample. He had examined many samples of this glycerine and lime juice hair-wash, but had never found any erine in them. Mr. Davies submitted that, as the defendant had put in the preparation a vegetable oil and an alkali, the substances which produced glycerine, the summons must be dismissed. The Chairman : No, no, Mr. Davies ; that won't do. You profess to sell glycerine, not the substances which may, under certain circumstances, produce it. There must be a conviction, and, as this is the first case of its kind, I hope it will be a warning to other people. We fine the defendant 20s. and costs.
In the House of Commons, on the 16th inst., Captain Pirie asked the Secretary of State for the Home Department whether, having regard to the fact that in the year 1895 out of 1825 prisoners who came for trial before the courts in Scotland only two were detained waiting for trial for more than fourteen weeks as against 199 in England, and that the longest detention before trial in Scotland was only seventeen weeks, against thirty-one weeks in England, the Government could see their way to effect such changes in the criminal procedure in England as would effectively reduce such periods of detention in the latter country with a view, if
HOUSE OF LORDS. Practice - Appeal by Married Woman Defendant -- Costs - Married
Women's Property Act 1893 (56 8 57 Vict. c. 63), 8. 2.--An appeal by a married woman defendant is not a "proceeding instituted by a woman within sect. 2 of the Married Women's Property Act 1893, which applies only to actions, or proceedings in the nature of actions, insti. tuted by married women as plaintiffs, and therefore the court has no jurisdiction to order the payment of the plaintiff's costs of an unsuccessful appeal by a married woman defendant out of property of hers subject to a restraint on anticipation. Hood-Barrs v. Cathcart (71 L. T. Rep. 11; (1894) 3 Ch. 376) approved. Judgment of the Court of Appeal affirmed.
[Hood-Barrs v. Heriot. H. of L. March 16.—Appellant in person. Solicitors : Hood-Barrs and Co.; Ex parte.] Practice--Costs paid to Solicitor--Judgment reversed-Repayment of
Costs.-An appeal by the defendant in an action in which the present appellant was plaintiff was allowed by the Court of Appeal with costs, and a stay of execution was refused. The plaintiff appealed to the House of Lords. While the appeal was pending, the defendant's solicitors asked for and received payment of the taxed costs, but gave no undertaking to repay them if the appeal was successful. The House of Lords reversed the judgment of the Court of Appeal with costs. Held, that the solicitors were not personally liable to repay the costs paid to them, for which they had accounted to their client. Fitzmaurice v. Jordan (32 L. Rep. Ir. 112) not followed. Judgment of the Court of Appeal (74 L. T. Rep. 372; (1896) 1 Q. B. 610) affirmed.
[Hood-Barrs v. Crossman. H. of L. March 16.--Appellant in person; counsel for the respondent, Jelf, Q.C., Macaskie. Solicitors : Hood-Barrs and Co.; Crossman and Prichard.]
COURT OF APPEAL. Company-Winding-up-Misfeasance of Officers-Auditors --Chartered
Accountants casually employed by Directors---Appointment of Auditors of Company under Articles of Association--Companies (Winding-up) Act 1890 (53 f. 54 Vict. c. 63), s. 10.—A summons was taken out on behalf of P. and R., who carried on business in partnership as chartered accountants, to stay all further proceedings under a misfeasance summons taken out, under sect. 10 of the Companies (Winding-up) Act 1890, by the liquidator of a company, against certain officers of the company (including P. and R.), on the ground that they, P. and R., were not “ officers of the company ” within the meaning of that section. The company was formed in 1888, and its articles of association contained similar provisions, as to the appointment of auditors, to those provided by Table A. in the Companies Act 1862. There was also an article giving indemnity to (inter alia) the auditors of the company for the time being. P. and R. were never formally appointed auditors of the company, but were casually invited to prepare a balance-sheet by the chairman of the company, and they issued and signed a certificate to the effect that the accounts were in accord with the balance-sheet. The balance sheet with the certificate annexed was circulated amongst the shareholders, and a dividend was subsequently declared for the year 1888. In the year 1889 P. and R. were invited not only to prepare
a balance sheet, but to audit the accounts of the company, and tiey again issued and signed a certificate in terms similar to the previous one, and the balance-sheet and the certificate were circulated as before, and a dividend was subsequently declared for the year 1889. It was contended by P. and R. that they were never appointed auditors of the company, and, inasmuch as they were only casually employed, they could not be “ officers of the company” within the meaning of the section; that they simply signed the certificate chartered accountants and not as officers of the company; and that the liquidator should have proceeded by action and not uuder sect. 10. The liquidator relied upon Re The London and General Bank Limited (72 L. T. Rep. 227, 611; (1895) 2 Ch. 166), and Re The Kingston Cotton Mill Company Limited (73 L. T. Rep. 482 ; (1891) 1 Ch. 6). It was decided by Stirling, J. (75 L. T. Rep. 648), that, inasmuch as P. and R. had de facto acted as auditors they could not escape from the jurisdiction created by sect. 10, but must be considered as officers of the company; and that their application therefore must be refused. His Lordship applied the principle laid down by Sir George Jessel, M.R., in Re The Canadian Land Reclaiming and Colonising Company; Coventry and Dixon's Case (42 L. T. Rep. 559; 14 Ch. Div. 660). P. and R. appealed. Held, that if sect. 10 of the Companies (Winding-ap) Act 1890 bad contained the word “auditor" it might well be that P. and R. having acted as they did could not be heard to say that they were not auditors, and that that section might well apply to them (Gibson v. Barton, 32 L. T. Rep. 396 ; L. Rep. 10 Q. B. 329; Coventry and Dixon's case (ubi sup.); that no decision had gone the length of saying that all persons wbo did auditors' work for a company were officers of the company ; that to be an officer there must be an office, and an office imported a recognised position with rights and duties annexed to it; that it would be an abuse of words to call a person an officer who filled po position either de jure or de facto, bnt who happened to do some of the work which he would have to do if he were an officer in the proper sense of the word ; and that, although P. and R. performed the duties which an auditor would have had to perform, they were no more de facto than they were de jure officers of the company. Held, therefore, that the appeal must be allowed with costs. Re The London and General Bank Limited (ubi sup.), and Re The Kingston Colton Mill Company Limited (ubi sup.), explained and distinguished. Decision of Stirling, J. reversed.
[Re The Western Counties Steam Bckeries and Milling Company Limited. Ct. of App. No. 2: Lindley, Smith, and Rigby, L.JJ. Feb. 24 and March 11.-Counsel: for the appellants, Eve, Q.C. and Frank Erans; for the respondent, Buckley, Q.C. and Edwin Ward. Solicitors : for the appellants, Woodcock, Ryland, and Parker, agents for Vaughan and Hornby, Newport, Mon. ; for the respondent, Talbot
and Tasker, agents for Dicon and Dixon, Bristol.] Easement-Light--Obstruction-Express or implied Grant-Building
Land-Interrening Strip of Land-Conveyancing and Law of Property Act 1881 (44 & 45 Vict. c. 41), 8. 6, sub-sects. 2, 4.-In March 1896 the defendant and another person, as “beneficial owners," conveyed to the plaintiff in fee a plot of land with a house recently erected thereon which had windows upon its western side overlooking an adjoining plot of land then belonging to the defendant. In the conveyance was the following exception : Except nevertheless and reserving to the vendors, their heirs and assigns, and other the owners and occupiers for the time being of the land shown on the said plan contiguons or near to the piece of land hereby conveyed marked building land, a right of way.” There was no reservation in express terms of any right of the defendant to build upon the vacant land. Upon the plan which was annexed to the deed was shown a vacant piece of land which the plaintiff's windows overlooked, and upon it were written the words“ building land.” Sab-sect. 2 of sect. 6 of the Conveyancing and Law of Property Áct 1881 enacts that: “A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all
ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses.: or other buildings conveyed
Sub-sect. (4) enacts that * This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.” Shortly after the conveyance to the plaintiff the defendant commenced to build, and had since completed, two houses upon his vacant land. The erection of these houses seriously and materially interfered with the access of light to the plaintiff's kitchen window, which was one of the western windows in his house. Thereupon the plaintiff brought an action against the defendant for an injunction and damages. It was established at the trial that the plaintiff at the date of his conveyance knew that the defendant intended to build upon his vacant land a pair of houses similar to those already built in the row in which the plaintiff's house was situate ; but one ground of complaint on the part of the plaintiff was, that the new houses built by the defendant were not like the previous houses in the row, and in particular that a space of 4ft. Iin. between the house and the boundary wall was not left. Kekewich, J., before whom the action came on for trial, was of opinion that the plaintiff had no ground of complaint against the defendant, and accordingly dismissed the act with costs. The plaintiff appealed. Held, that the reference to the plan and description in it of the adjoining land as“ building land," did not sbow any intention to exclude the operation of the section above set forth, for it was quite possible to build on that
adjoining land without darkening the windows of the house conveyed : that, even if this were a case of implied grant, the defendant would still be in the wrong, for the grantor could not throw on the grantee the onus of sharing the limit to be set on rights incidental to the enjoyment of the property granted ; and that, even if the section did not apply by reason of the words “
building land” on the plan, Swansborough v. Coventry (9 Bing. 305) and the older authorities showed that the grantee had a prima facie unrestricted right to light as against the. grantor. Held, therefore, that the appeal must be allowed with costs. The Birmingham, Dudley, and District Banking Company v. Ross (59 L. T. Rep. 609; 38 Ch. Div. 295), and Myers v. Catterson (62 L. T.. Rep. 205; 43 Ch. Div. 470), do not affect the law previously established by Swansborough v. Coventry (ubi sup.), Wheeldon v. Burrows (41 L. T. Rep. 327 ; 12 Cb. Div. 31), Allen v. Taylor (16 Ch. Div. 355), and earlier decisions. Decision of Kekewich, J. reversed.
[Broomfield v. Williams. Ct. of App. No. 2: Lindley, Smith, and Rigby, LJJ. Feb. 23, 25, and March 12.-Counsel : for the appellant, Warrington, Q.C. and Badcock; for the respondent, Bramwell Davis, Q.C. and A. W. Rouden. Solicitors : for the appellant, Crowders and Vizard, agents for Watson and Booth, Manchester ; for the respondent, Minshall, Parry-Jones, Woosnam, and Smith, agents for Pugh and
Bone, Llandudno.] Landlord and Tenant--Corenant by Lessor to pay Water Rate--Water
supplied for domestic Use, and also for Trade Purposes-Waterworks Clauses Act 1847 (10 & 11 Vict. c. 17, 8. 3)— The New River Company's Act 1852 (15 d. 16 Viit. c. clx.), 88. 35, 38, 40.-By a lease dated the 11th Jan. 1895, the plaintiff leased to the defendants the ground floor and basement of certain premises in the city of London, for a term of thirty years. The lease contained a covenant by the lessor “ to pay all rates, taxes, and assessments, water rate and other outgoings, except gas and electric light, now or hereafter to be imposed or assessed upon the said premises, or on the lessor or lessees in respect thereof." There was also a clause forbidding the lessees to carry on any noisome or obnoxious trade or business, but the use of the premises for the sale of refreshments was not to be considered as a breach of this provision. The New River Company, under their Private Act of 1852, sect. 35, charged £8 58. per annum as a water rate for domestic purposes, assessed on the annual value of the premises, and by contract with the New River Company, under sect. 40 of their Act, the lessees also paid them £15 per annum for water supplied for their trade of providers of refreshments. The lessor refused to pay the £15 charged for trade purposes, and took out summons to determine whether the covenant by her to pay rates, &c., obliged her to pay the £15. It was contended. for the lessor that the covenant only covered the water rate for domestic purposes assessed on the annual value of the premises, and could not include money payable under a contract made between the lessees and the water company for a supply of water for trade purposes, over which the lessor could have no control. It was decided by Kekewich, J. (ante p. 181), that a rate in respect of water, whether levied under sect. 35 or sect. 40 of the New River Company's Act, 1852, was a water rate as defined by the Waterworks Clauses Act 1847, sect. 3 (“any rent, reward, or payment to be made for a supply of water "), and that the £15 was therefore payable by the lessor under her covenant. The lessor appealed. Held, that the water rate covenanted to be paid was clearly that in respect of the house, and did not include water required by the lessoes for their trade purposes, under the bargain by the lessees with the New River Company to supply them with water for their trade purposes; and that the lessor could not be compelled, under the terms of the covenant, to pay for the water so supplied. Badcock v. Hunt (60 L. T. Rep. 314; 22 Q. B. Div. 145) considered. Decision of Kekewich, J. reversed.
[Floyd v. J. Lyons and Co. Limited. Ct. of App. No. 2: Lindley, Smith, and Rigby, L.JJ. March 9 and 12.-Counsel: for the appellant, Cutler, Q.C., and MacSwinney; for the respondents, Alexander, Q.C., and Theodore Ribton. Solicitors : for the appeilant, T. G. Bullen; for the respondents, Edward Lee and Davis.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Limitations, Statute of — Inspectorship Deed-Trusts as to Partnership
Assets and separate Assets of Partners— Trust as to separate Assets, whether express or constructive.-By an inspectorship deed, executed in 1833, the debtors, who were partners, covenanted to collect and get in the partnership assets, and to pay the moneys received into the bankinghouse of the firm, and apply them so far as the same would extend in satisfaction of the debts due to their creditors named in the deed; and each of them further covenanted to collect and get in the assets belonging to his separate estate and apply them in payment of his separate debts, and pay the surplus (there being none in the event which happened) into the banking-house of the firm, to be applied for the benefit of the creditors of the firm according to the first covenant above-mentioned. A claim having been made by a creditor of the firm. to funds which subsequently accrued standing to the credit of the account of the legal personal representative of the last surviving partner for distribution among certain persons as part of the separate assets : Held, that, having regard to the form of the deed, there was no express trust thereby constituted as regarded the separate assets of the partners, and that the period fixed by the Statute of Limitations having expired, the claim was barred.
[Trevor v. Hutchins. Cb. Div.: Stirling, J. Jan. 13 and March 9. - Counsel : Hastings, Q.C. and Brabant; Buckley, Q.C. and Faucus.
Solicitors ; Shearman and Rayner ; Bone and Hepple.]. Practice - Company Notice of Motion - Relief claimed against
several Defendants—Separate and severable Interest of Defendants
Motion for Final Judgment against one Defendant-Agreed Minutes of Order-Rules of the Supreme Court 1883, Order XXVII., r. 12.--The plaintiff claimed a declaration that he was induced to take one share in the defendant company by the fraudulent misrepresentations of the defendants; rectification of the register of the defendant company by removing his name : damages and other relief. The defendants other than the company were the directors of the defendant company, which was in voluntary liquidation. The defendant company consented to judgment against them in terms of certain agreed minutes, and admitted that the plaintiff was entitled to the relief claimed as against them. Upon a motion for final judgment against the defendant company upon the claim indorsed upon the writ, brought on as a short cause, it was submitted that Order XXVII., r. 12, justified the court in making an order in terms of the agreed minutes, viz., for rectification of the register, and that the plaintiff might prove as a creditor in the winding-ap of the defendant company for the sum of £1000 and his costs. The defendants other than the company were not served with the motion. Held, following Cooke v. Gilbert (1892) W. N. 111, and at p. 128, n.), that such an order could be made, and that the procedure adopted was in conformity with the practice.
[Macmillan v. Australasian Territories Limited and others. Ch.Div.: Stirling, J. March 13.-- Counsel : Micklem, Gatey. Solicitors : Gard,
Hall, and Rook ; Ellis, Munday, and Clarke.] Specific Performance-Sale by Auction— Sale of Lands--Authority of Auc
tioneer to bind the Purchaser-Authority of Auctioneer's Cierk--Mistake --Statute of Frauds (29 Car. 2, c. 3) 8. 4.-In an action for specific performance of a contract of sale by auction of freeholds the defendant, to whom the property was knocked down, alleged that on going into the sale-room he had a conversation with the auctioneer, who asked him to give him a bid (which was admitted by the plaintiffs, the vendors), and that in consequence of that request be bid for the property, but without any intention of becoming the purchaser. Held, on the evidence, that the defendant did bid for the property under a boraâ fide mistake, which prior to the Judicature Act would have been fatal to the action ; but that, baving regard to the decision in Tamplin v. James (43 L. T. Rep. 520), it was not so, and the plaintiffs were still entitled to relief. After the sale, however, the defendant, who had left the room and was called back, refused to sign the memorandum which had been prepared by the auctioneer's clerk, or to pay the deposit, and such memorandum was thereupon signed by the clerk. A week later, at the instance of the vendors, a duplicate memorandum, altered so as not to refer to payment of deposit, was signed by the auctioneer himself. Both these documents were objected to by the defendant as being insufficient to satisfy the Statute of Frauds, the first because it was signed by the clerk, and the second because at that time the authority of the auctioneer to sign was gone. Held, that neither of these documents was sufficient to satisfy the statate--as to the first, because, on the authority of Pierce v. Corf (29 L. T. Rep. 919), the auctioneer cannot delegate his authority ; and as to the second, on the authority of Buckmaster v. Harrop (13 Ves. 456), the signing of the memorandum must be contemporary, so as really to constitute part of the transaction of sale, and accordingly that the action failed, and must be dismissed with costs.
[Bell v. Balls. Ch. Div.: Stirling, J. Feb. 11, 12, and March 10.Counsel : Woods, Q.C., and Ingpen ; Hastings, Q.C. and Stallard.
Solicitors : Beaumont, Son, and Rigden ; C. Butcher.] Trade Name-Proper Description of Article-Calculated to deceive
Account of Profits.-In 1869 M. Saxlehner purchased certain lands near Buda Pest, on which were springs of bitter water. To this water he gave the name of “Hunyadi Janos,” which was that of an Hungarian patriot. In 1876 M. Saxlebner entered into a contract with the Apol. linaris Company, under wbich the company became the sole importers of “ Hunyadi Janos” water into England. This contract finally expired on the 25th March 1896. In 1888 the company began to paste upon the bottles which bore the name of “Hunyadi Janos” a yellow label with a red diamond. This mark they also placed on other of their goods. About this time the company purobased certain lands also near Buda Pest, on which were springs of bitter water which they named “Uj," that is, “New" "Hunyadi,” and upon the termination of their contract with M. Saxlehner commenced to sell bottles of this water, which they called “ Apenta, a natural Hungarian aperient water, bottled at the Uj Hunyadi Springs, Bada Pest." They also pasted on the bottles their yellow label with the red diamond. This was an action brought by the successor of M. Saxlehner to restrain the company from passing off Hungarian bitter water other than that derived from the plaintiff's springs as Hunyadi Janos water, and in particular from selling bitter water which bore the name “Hunyadi," and for damages or an account of profits. Held, that by selling their bitter water under the name of "Hunyadi,” notwithstanding that it might be properly so described, the defendant company, placing an instrument of deception in the hands of the retail dealer, was passing off their goods as those of the plaintiff, and that, following Reddaway v. Banham (1896) A. C. 199), the plaintiff was entitled to relief. With regard to the admissibility of evidence of intent" his Lordship said that, if in a case like this as explained by surrounding circumstances the defendant's goods were calculated to deceive, no evidence would be required to prove the intention to deceive; if, on the other hand, a mere comparison of the goods explained by surrounding circumstances was not sufficient to show that they are calculated to deceive, it was allowable to prove from other sources that what was seeming innocence was really intended to deceive. As regards the diamond mark, his Lordship was of opinion that that was used by the defendant company as their trade mark, and was not calculated to deceive. As to an account, it was perhaps, when asked, directed almost as a matter of course ; but his Lordship
doubted whether it was accurate to speak of there being property in a common law trade mark, and, if so, the right to an account would not necessarily follow, but, following Lever v. Goodwin (4 Pat. Rep. 492 ; 36 Ch. Div. 1), his Lordship, in addition to granting the injunction asked, directed an acconnt of profits.
[Saxlehner v. Apollinaris Company Limited. Ch. Div.: Kekewich, J. March 4.--Counsel : Warmington, Q.C., Neville, Q.C., and Sebastian ; Sir Frank Lockwood, Q.C., Warrington, Q.C., and Cutler
Solicitors : Eyre, Dowling, and Co.; Janson, Cobb, Pearson, and Co.) Will-Construction-Charitable Purposes---Grants for or towards the Pur.
chase of Advouisons or Presentations-Void Gift.--A testator gave his residuary estate upon trust to convert and pay the proceeds thereof, or of so much thereof as should be applicable to charitable purposes, to special trustees, and he directed that such special trustees might apply the income, or any part of the capital, in grants for or towards the purchase of advowsons or presentations, or in erecting or contributing to the erection, improvement, or endowment of chnrches, chapels, or schools, or in paying or contributing to the salaries or income of incumbents, or masters, or teachers, but upon certain conditions specified, none of which applied in terms to the first objects named, and which were in effect that only such churches and chapels wherein the service should be conducted upon the principles of the Church of England distinguished as Evangelical, and only such persons professing such principles, should be aided ; and the testator directed that so much of his residuary estate as. should not be legally applicable for charitable purposes should be held by his general trustees upon trast for his nieces named. Held, that the first object mentioned by the testator, namely, grants for or towards the purchase of advcwsons or presentations, was not a charitable purpose, and therefore the whole gist failed; but, as the gift to the nieces was limited to property not legally applicable to charitable purposes, and there was no such property, nothing passed to the nieces under that gift, and the testator died intestate as to the whole of his residuary estate.
[Re Hunter ; Hood v. Attorney-General. Romer, J. March 6.Counsel: W. C. Druce; The Attorney-General, Ingle Joyce, and Dibdin ; Farwell, Q.C. and Ashworth James ; Levett, Q.C. and G. Lawrence. Solicitors : West, King, Adams, and Co.; Solicitor to the Treasury; Hol
lams, Sons, Coward, and Hawksley.] Will—Construction-Settlement-Referential Trust in Will-- Accretion
Hotchpot Clause.—By a marriage settlement certain funds were settled upon certain usual trusts for the benefit of the husband and wife and their children, and it contained a hotchpot clause. By the will of the wife's mother made subsequently a portion of her personal estate was. bequeathed to the trustees to pay and transfer the same to the trustees of the settlement, to be held by them upon and for the same trusts and purposes as were therein expressed concerning the property thereby settled. On a summons taken out by the trustees of the settlement to ascertain the effect of this bequest in the will, it was contended, by parties to whom but small appointments under the settlement had been made, that the bequest was to be treated as an accretion to the settlement, so as to make the hotchpot clause applicable to the distribution of that property by bringing into account the funds already appointed under the settlement. Held, that, inasmuch as there was no context in the will importing that the use of the words “same trusts” implied an accretion of the trust fund, that the bequest must be deemed to be of an independent fund to which the hotchpot clause in the settlement was. not applicable. Re Perkins; Perkins v. Bagot (67 L. T. Rep. 743) discussed.
[Re North ; Meates v. Bishop. Ch. Div.: Stirling, J. March 10.Counsel : T. Douglas ; Lord R. Cecil; Rowden; Dill. Solicitors : Hensman and Marshall ; Park, Nelson, and Co.]
PROBATE, DIVORCE, AND ADMIRALTY DIVISION.
ADMIRALTY BUSINESS. Salvage-Tug and Tow— Negligent Navigation-Contributory Negligence.
-A tug belonging to the plaintiffs was engaged to tow the defendants' barque from Falmouth to Hull for the sum of £120. The course was set by the tag, and throughout no objection to the course so taken was made by those in charge of the barque. During the towage it came on foggy, but, although soundings were taken by those on board the barque, no soundings were taken from on board the tug. During the fog the tug touched the ground, and the barque grounded and remained fast. The owner, master, and crew of the tug, having assisted in getting the barque off, claimed salvage remuneration for the services so rendered. The defendants, the owners of the barque, her cargo and freight, disputed the right of the plaintiffs to salvage on the ground that the stranding of the plaintiffs' barque was caused by the negligence
those in charge of the tug, and counter-claimed ag the owners of the tug for the damage sustained by the defendants in consequence of the alleged negligence. The plaintiffs urged that the control of the navigation was with the barque alone, and that those on board of her should have checked the course of the tug, and were solely responsible for not doing so, and that those on board the barque were guilty of negligence in not doing so, and that their negligence was the cause of the grounding. The Elder Brethren advised the judge that the course pursued in the circumstances was an improper one, that it was continued negligently; and further that the master of the tug onght to have taken repeated soundings, which would have shown that the vessels were not on a. correct course, and would have warned the tug to baul out, and so have prevented the stranding. Held, that, as no directions were given by the barque to the tug, the tug was responsible for the direction of the coarse, and that, as the negligence of those on board the tug was a cause of the disaster, no salvage remuneration conld be claimed by the