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to pay me off.” This was held by Lords Justices Knight Bruce and Turner, affirming Romilly, M.R., a sufficient acknowledgment.
There are two subsidiary questions which may be here dealt with, viz., to whom and by whom must the acknowledgment be given ? By sect. 14 of the Act of 1833, it must be given “ to the person entitled or his agent ;” and under sect. 7 of the Act of 1874, “ to the mortgagor cr person claiming his estate, or to the agent of such mortgagor or person.” In Trulock v. Roby (ubi sup.) the acknowledgment was given to the grandfather of the infant heir of the mortgagor, who was held to have acted as her agent, and when she came of age she was entitled to adopt what he had done on her behalf. In another case, W. H. mortgaged to J. P. fir 1000 years. J. P. died, and the mortgage passed to S. P. as residuary legatee. S. P. died, and it passed to her executors. W. H. died, having devised all his real estate to trustees for the plaintiff. The plaintiff entered into possession. S. P.'s executors took possession as mortgagees in 1822, and remained till 1838, wben they sold to the defendant, the conveyance reciting the mortgage and assigning subject to the equity of redemption. The plaintiff filed a bill in Chancery in 1843. It was held that the deed of assignment to the defendant did not constitute a sufficient acknowledgment of the mortgagor's title to take the case out of the statute : (Lucas v. Dennison, 13 Sim. 584). In the converse case agency is not admitted. The words of the Act of 1833, 8. 14, are signed by the person in possession or in receipt of the rents and profits of such land, or in receipt of such rent,” and those of sect. 7 of the Act of 1874 are * signed by the mortgagee or the person claiming through him.” Accordingly, in Ley v. Peter (3 H. & N. 101 ; 27 L. J. 239, Ex.) an action of ejectment in 1858, the plaintiff and the defendant's grandfather bad been tenants in common of a meadow. The defendant's grandfather had pos. session, having formerly held the property under a lease. The grandfıther, father, and defendant himself all in succession kept possession, and on the defendant's taking possession his agent wrote to the plaintiff's agent, saying that the defendant would accept a lease of the plaintiff's share, and that he was not bound to pay rent for the time his father had held, but would do so. This was held to be no acknowledgment of the plaintiff's estate, being only signed by an agent, and not by the party in possession.
There are some further provisions in sect. 7 of the later Act with regard to joint mortgagors and mortgagees which are worth noticing. Where there is more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, it is sufficient to give the acknowledgment to any of such mortgagors or persons, or his or their agent. But where there is more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, an acknowledgment signed by one or more is only effectual against those who signed it and the person or persons claiming under them. In Richardson v. Younge (25 L. T. Rep. 230 ; 6 Ch. 478), it was held by Lords Justices Mellish and James, affirming Vice-Chancellor Malins, that an ackuowledgment of the title of a mortgagor given by one only of two joint mortgagees, who, on the face of the mortgage deed, were shown to advance the money on a joint account as trustees, did not keep alive the right of redemption either as against the whole property or against a moiety of it, but was wholly inoperative. For a signature by one mortgagee as agent for the others would be ineffectual, and the provisions in the section as to acknowledgment by some of several mortgagees apply only where they have separate interests either in the money or the land; had they not been trustees, they would have been entitled to distinct interests: (per Lord Justice Mellish). This decision is confined to the case of mortgagees who are trustees, and are shown to be such on the face of the deed : (per Lord Justice James).
is clearly defined: if the luggage is given into the custody of the company's servants, the company insures it; if the passenger takes the luggage into his own carriage, the company still insures it, provided that, in the event of any loss or injury during its transit, the company is not liable if it can show that it was partly due to the passenger's own negligence. In other words, the company retains its common carrier's obligation, but, if it can prove contributory negligence, it is absolved from liability.
The law on this point was considered at extraordinary length in Bunch v. Great Western Railway Company (58 L. T Rep. 128), which should be consulted by anyone who is not sure of his ground in the department of negligence in law. Inasmuch as it appears clear to me that as a common carrier can always rely on the contributory negligence of his customer, the decision in that case is of a highly reasonable character. But this I cannot stay to discuss, for I am charged with the task of ascertaining whether cycles should properly be considered merchandise, or come within the definition of personal luggage-which so must be carried by the company for the bare fare of its owner's ticket.
Thus the question arises, wbat is “personal luggage?" and the best way of effectually answering that question is to consider the cases on the point. This I shall very briefly do, and in the first place deal with deeisions declaring what goods and articles are not in the category.
In Cahill v. London and North-Western Railway Company (4 L. T. Rep. 246; 13 C. B. N. S. 818), The Great Northern Railway Company v. Shepherd (8 Ex. 30), and Belfast and Ballymena Railway Company v. Keys (4 L. T. Rep. 841; 9 H. of L. Cas. 556), mere merchandise e.g., some dozens of ivory handles -- was held not to be personal luggage. The same was laid down of title deeds and money of a client carried by a solicitor in Phelps v. London and North-Western Railway Company (12 L. T. Rep. 496; 19 C. B. N. S. 321); sundry domestic articles, such as sheets, to be used in the traveller's house in Macrou v. Great Western Railway Company (24 L. T. Rep. 618 ; 6 Q. B. 612); the sketches of an artist in Mytton v. Midland Railway Company (4 H. & N. 615); and an invalid chair in Cusack v. London and North-Western Railway Company (7 Times L. Rep. 452). There are other decisions on the point, but these will probably suffice.
Now, having shown that mere merchandise and certain other articles which are ranked as merchandise, have been judicially declared to be not personal luggage, it remains to be ascertained what kind of goods is comprised in that term. And in this connection the judgment of Baron Parke in Great Northern Railway Company v. Shepherd (ubi sup.) is of great importance. The learned Baron, in the course of his judgment, said: “In this case, there being no special contract, the defendants were bound to carry the plaintiff and his luggage, which term, according to the true modern doctrine on the subject, comprises clothing and such articles as a traveller usually carries with him for his personal convenience ; perhaps even a small present or a book for the journey might be included in the term.” If the learned Baron had been asked to include a “ bicycle” in his category, he might. not unreasonably have asked “why,” and on being told by the editor of a cyclist paper
“ because it is useful at the end of a journey,” might reasonably have answered: “ Then, why shouldn't there be included a saddle-horse for a father, a variety of ponies for a family, a goat for a baby's chaise, an elephant for a showman's caravan, to say nothing of the vehicles to be driwn by the various quadrupeds, and the saddlery necessary for such purposes ?”
The next, and in confirmation of my view of the law the strongest, case is that of Hudson v. The Midland Railway Company (20 L. T. Rep. 526 ; 4 Q. B. 369). In that case plaintiff took a first-class ticket to London; on his return journey he bad no luggage of any kind except a "spring horse weighing 781b., and measuring in length 44 inches, which he bought in London for his child at home. He was entitled by the private Act of the company to take with him his ordinary luggage (and there is clear authority for saying that “ordinary,' personal,” and “ passenger's applied to luggage mean the same thing) not exceeding 100lb. in weight.
The company refused to consider the toy (?) as personal luggage, and insisted on a special contract being entered into and a special price paid for carriage. The company's contention was upheld both in the County Court and on appeal in the Queen's Bench. In giving the judgment of the court Mr. Justice Lush, after saying that he did not agree that " personal luggage'embraces only those things which are carried for the personal use and convenience of the traveller himself.” went on to lay down “ that the words of the statute -- ordinary luggage-describe a class of articles which are ordinarily or usually carried by travellers as their luggage," and then, to quote Chief Justice Cockburn, “proceeded to hold that the dimensions and size of this spring horse took it out of this definition.” Therefore, according to Justices Lush, Hannen, and Hayes a bicycle would have to be regarded in the same light as a sponge, a toothbrush, trousers stretchers, or a silk hat, before they would hold it to be “personal luggage.”
The last case I mean to touch on gives the coup de grace to the strictly cyclistic contention. It is the much quoted and generaliy misunderstood Macrow v. Great Western Railway Company (ubi sup.). It was therein held that six pairs of sheets, six pairs of blankets, and six quilts, could not, even when packed in a trunk and intended for the use of the traveller's household on his settling down in a certain town, be considered as personal or “ ordinary passenger's luggage.” Chief Justice Cockburn, in delivering the judgment of the court. said : “.
The impossibility of travelling without the accompaniment of a certain quantity of luggage for the personal comfort and convenience of the traveller has led from the earliest times to the practice on the part of carriers of passengers for hire of carrying, as a matter of course, a reasonable amount of luggage for the accommodation of the passenger, and of considering the remuneration for the carriage of such luggage as comprehended in the fare paid for the conveyance of the
NOTES ON THE LIABILITY OF RAILWAY COM
PANIES IN RELATION TO PASSENGERS' LUGGAGE AND SUCH ARTICLES AS BICYCLES.
[By Ernest BOWEN-ROWLANDS.) RAILWAY companies possess most of the advantages of other common carriers, and have the benefit of the Carriers Act (11 Geo. 4 & 1 Will. 4, C, 68); but since the passing of the Railway and Canal Traffic Act in 1854 (17 & 18 Vict. c. 31) they can make no binding contract with their customers limiting their liability for their or their servants' neglect or defanlt in respect of the carriage of goods, unless the contract is signed by the customer or his agent, and is in the opinion of the court or a judge both just and reasonable. See on this point Peek v. North Stafford Railway Company (8 L. T. Rep. 768); Shaw v. Great Western Railway Company (70 L. T. Rep. 218). Therefore it will be gathered that a railway company is not too gently treated by the Legislature, and it should be also remembered that, though in the case of passengers it is only responsible at the highest for negligence, yet in the case of goods it is an insurer, and, in the words of Lord Mansfield, "answerable at all events” for all damage unless caused by the act of God or the Queen's enemies, or by what is technically termed “proper vice,” or is attributable in part to the customers' insurmountable negligence. Now, in the case of animals and goods despatched per railway train, the company is, in the case of horses, cattle, sheep, pigs, and certain specified articles (see above-mentioned statutes), entitled to a declaration if the value is over a certain sumotherwise the certain sum can only be recovered—and can in all cases make a just and reasonable special contract; it in return guarantees-subject to the above conditions--safe delivery of the animals and goods entrusted to it for carriage. In the case of passengers, a company is bound to carry them at reasonable rates, and engages to be guilty of neither wilful misfeasance nor negligence.
What then, it may be asked, is the position of personal luggage taken by the passenger in the same train as the one he travels in? The answer
passenger," and thus plainly showed what the foundation of the privi. lege was; and further, that in the earliest times such articles as cycles were not treated as general luggage. The learned Chief Justice then lays down that “whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs ”
e.J., “the fisbing apparatus of the sportsman, the easel of the artist on a sketching tour, or the books of the student, and other articles of an analogous character " with reference to the immediate necessities, or for the ultimate purpose of the journey, must be considered as personal luggage," and a cycling judge if there be such a fearsome creature might extend this already too wide statement of the law, and find a “ bicycle” personal luggage ; but more remains behind. The learned judge further said: “While the authorities referred to establish that a passenger cannot claim to have carried as ordinary personal luggage, articles unconnected with the personal use and convenience of the traveller, or, as in Hudson v. Midland Railway Company, of such a size and shape as that they cannot reasonably be carried as luggage,” and thereby put the cycle on the same level as the “ spring horse." And after all, is not it eminently fair that it should be so placed ? If such were not the case, a railway company would be bound, merely for the owner's fare, to carry safely a most delicately and inconveniently shaped .contrivance--e.9., a bicycle, multicycle, and even a motor car, for the same principles, pro hac vice, govern all- -generally of considerable value, and would not be allowed to attach any condition limiting their liability in any degree whatever, or in respect of their increased trouble be empowered to charge a penny more. As it is, the railway companies are empowered to charge a reasonable sum for safe carriage, and can make a contract with the consignor limiting their liability in a reasonable manner. If they do not make such a contract, they are fully responsible as insurers, and notices are of no avail.
The law then at present stands that, while the railway companies can refuse to carry cycles except on special conditions, these conditions must be just and reasonable, and must be accepted in writing by the cycle owner, and, having regard to the special care required at the hands of the railway officials, and the room taken by the machine, it is the height of unfairness to advocate a change in the law.
For my part, while adhering to the decision of Chief Justice Cockburn in the main, I think he did not go far enough in his judgment, or at all events so far as the cases warranted.
In conclusion, I would point out that railway companies considered as carriers of passengers are exactly on the same level as cabmen. There is consequently no liability on a cabman to take in or on his cab anything more than the personal luggage of his fare. Therefore, he is not bound to carry bicycles, or any other kind of cycle, and since he is not amenable to the provisions of the Canal and Railway Traffic Act, he can make any stipulation he likes in regard to them.
to follow that what is and what is not interlocutory is purely a question for the judge who makes the order or the Court of Appeal to decide. Hence follows the first real difficulty with which practitioners are met. By applying the old test already mentioned, one might safely conclude that an order complained of was not interlocutory, and unhesitatingly give notice of appeal to the Divisional Court without asking for any leave. Alas, however, for the decision of the practitioner! On getting to the Divisional Court a wily opponent meets him with the preliminary objection that the order complained of is interlocutory, and the learned judges who compose the court, sorely puzzled as to the real merits of the objection, decide in its favour, solacing themselves with the reflection that if the objection should chance to be ill-founded they have at all events furthered the object of the Legislature by “putting a stopper ” on appeals. But should a strong court, desirous perhaps of preserving the appellate rights of the Queen's Bench Division, decide against the objector on the first point, he still has another bolt to shoot, and forthwith contends that, although the order complained of may not be interlocutory, still it relates (and he quotes sect. 4 of the Act) to a matter of practice and procedure, and consequently the appeal ought to have been to the Lords Justices and not to a mere court in banc. Whatever the confusion may have been in the minds of the judges upon the first objection so courageously overruled, the new point renders them absolutely incapable of coming to any decision save in favour of the objector. They puzzle their brains and appeal to the appellant's counsel for examples of cases which can safely be said to relate neither to practice nor to procedure, but they are bound to confess that “it passes the wit of man" to suggest an instance; and in the result the objection is allowed, and the appellant is told that he has made a mistake and ought to have gone elsewhere. The net result is, that the unfortunate appellant finds himself mulct in the costs of his opponent plus his own.
But it may be that, in order to be on the safe side, a suspicious advocate takes the precaution in chambers of asking the judge who makes the order, which it is intended to appeal against, to give leave for that purpose. The judges in chambers are not always so sure of their own infallibility as to refuse, and the desired leave is granted, the judge knowing that the dissatisfied party appeals at his own risk as to costs. But at times the leave sought for is peremptorily refused, in which event the would-be appellant consoles himself with the reflection that, if justice is denied him below, there is, thank God, a Court of Appeal to which Parliament has said he may go for leave if the judge making the order complained of refuses it. Hugging this consolatory reflection to his breast he hastens some morning to Appeal Court No. 1 and moves ex parte for leave to appeal. Three austere Lords Justices regard him with surprise ; interrogate him closely as to the nature of and reasons for his application ; bewilder him with a series of imaginary and impossible combinations of circumstances put in the form of suppositious cases ; give their own answers to the cases put, or corner him by drawing some false though plausible conclusion; and finally refuse the desired leave with the intimation that Parliament meant, when it passed the Act of 1894, to discourage appeals, and that when the judge below had once refused it, it was not for them, notwithstanding the definite language of the Act, to give leave unless they were satisfied that there had been some gross and terrible miscarriage of justice.
This is no imaginary picture. Only recently a highly paid court consisting of the Lord Chancellor, the Master of the Rolls, and four Lords Justices expended an hour and thirty-five minutes of their valuable time in heckling one of the outer Bar, and delivering six ponderous judgments tɔ the effect that, although paid and existing for the sole purpose of hearing appeals, they did not intend to do anything of the kind if the judge below would not give leave.
Let us consider the monstrous absurdity of the whole situation as created by this new Act. We will assume that a master of long experience and recognised ability and judgment having made, not in the hurry of chambers, but in the seclusion of his own private room and after a full examination of all the facts of the case, a certain order, the other side, not so much with the idea that the order is improper as in the hope that by an off chance the judge may be induced to reverse it, decide to appeal to him. No leave is required either from him or the master, but the appeal may be made at the cost of a few shillings and within a few days. The judge hears the appeal, and whatever the motives influencing him may be, he upsets the master and refuses leave to appeal. The position then is this : that, although the issues may be of vital importance to the party affected by the judge's order, he is left absolutely without any remedy by way of appeal. Two men of equal experience and judgment, and both equally capable of coming to a right conclusion, differ in their views of a case, and yet the view of only one of them can be challenged unless the other is willing that his view should also be subjected to the revision of a higher tribunal. To point the absurdity of the whole situation, it is only necessary to recollect that any judgment by a judge given in open court is liable to be appealed, because it has been rightly felt that a single judge may err in his view and interpretation of the law, and yet that selfsame judge, when he gives a judgment in chambers amidst the noise and haste and bustle that prevail there, is to be regarded as infallible unless he himself comes to the conclusion that he is not.
In conclusion, we venture to suggest that the Act ought never to have been passed, and that it should at once be either amended or repealed. In a future article we hope to be able to indicate the lines upon which amendment should go ; but, as any radical amendment is certain to provoke considerable controversy and would consequently take a long time to effect, it would be better at an early date next session to pass a short repealing Act and permit the work of reconstructing the principle and system of appeals to follow at a more convenient time.
At all events, in our judgment, the existing Act is full of perplexities, and in its operation it is calculated to effect a vast amount of injustice, and therefore the
[By an Indignant Junior.] The Supreme Court of Judicature Act 1894 has now been under the consideration of the courts and practitioners for more than two years, yet its true meaning is as uncertain to-day as when it came fresh from the Legislative manufactory on the 3rd July 1894, having been approved by Queen, Lords, and Commons, and presumably found to be clearly indicative of what it was meant to effect. Its main object is supposed by some experts to be the limitation of the number of appeals- an end which could have been simply reached had an Act of a dozen lines, briefly prohibiting all appeals of whatever character and moment and abolishing all appellate tribunals, been hurried through Parliament. Such a course would have saved the Treasury a substantial annual sum, and would at least have had the merit of being both easy and complete. However our patres conscripti in their wisdom did not see fit to adopt so short and comprehensive a method, but with an ingenuity which does no credit to the draftsman who prepared the measure and considerable discredit to the deliberative assembly which passed it, resorted to a plan which has had the effect of disturbing a well-settled and well-understood practice and substituting for it intricacies and confusions which harass the busy practitioner, and which, while changing the character, have effected no real diminution in the number of appeals.
The Act commences by declaring that no appeal shall lie, without the leave of the judge or of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by a judge, save in half a dozen specified cases. The measure subsequently enacts that, “ in matters of practice and procedure, “every appeal from a judge shall be to the Court of Appeal. Around these enactments a battle royal has waged ever since the Act itself became operative, and it is particularly to these portions of it that we now propose to direct attention.
In the first place, it is worthy of note that the Act contains no definition of what is meant by “ interlocutory orders ” or “ interlocutory judgments.” The legal world has hitherto assumed that the word “interlocutory" denoted any order or judgment made or given during the progress of an action ; i.e., between the issue of the writ or other process instituting a suit and the uttering of final judgment. But that that is not the sense in which the word is used in the Aot under consideration is clear, for the Court of Appeal has already decided that certain orders made after delivery of final judgment are nevertheless interlocutory. For example, a summons to review a taxation, which in the nature of things is generally issued after final judgment and is the result of a taxation of costs which that judgment has awarded to one side or the other, has been held to be interlocutory, and therefore unappealable without leave. It seems, therefore,
sooner it is removed from the Statute-book and replaced by a measure of a simple and equitable character, the better for the cormunity at large.
[We may add that the position is made more absurd by the facility with which one judge gives leave to appeal, and the uniformity with which another refuses it.-Ed.]
rate of increase ; (b) the proportion to inhabitants ; (c) the proportion to marriages celebrated within the year; (d) the proportion to married couples living. Probably the last is the most instructive comparison (Bertillon, Annales de Démographie, 6:269). Unfortunatelg complete materials as to the number of married couples do not exist except in census years. The above tests are applied in the followiny tables, compiled partly from the “Return of the number of divorces in Foreign Countries” and partly from official statistics. In some instances it has been found expedient to substitute divorces for petitions.
Rate of Increase or Decrease of Petitions for Dirorce
CIVIL JUDICIAL STATISTICS, 1894.
(Continued from page 57.) Beneath are given the figures for France in the case of judicial separations for 1876-80 and in the case of divorces in 1892. The largest percentage of separations and dissolutions took place in the case of unions lasting 5 to 10 or 10 to 20 years; and this holds good of the figures for England and Wales which are likewise given.
1894... 1893... 1892... 1891... 1890... 1889... 1888... 1887... 1886... 1885... 1884...
2 88 25.87 36:56 21:44 6:14 7:11
0 22-0 38.0 28.0 70 2:0
12.7 8.8 7.8 0.0 6+ 21 9
21 24 4 40
2.3 7.9 0.2
। । ।
IT 1 |
As to children of the marriages songht to be dissolved, the facts sem to be similar to those observed in France. There it has been found that an abnormally large percentage of such unions are childless. The returns for 1894 as to England show that in 382 suits, no fewer than 141, or 37 per cent., it was alleged that there were no children of the marriages.
The Matrimonial Causes Act, 1860, provides (s. 7) for the intervention of the Queen's Procter in cases in which he alleges that there has been collusion. The total number of instances of intervention ap to 1893 was 426, or at the rate of about 12 a year. Of late years that official has intervened more often than in the years immediately after the passing of the Act. The total decrees reversed at the instance the Queen's Proctor during the whole time the Act has been in operation have been only 354 or about 83 per cent. of the interventions on his part.
Petitions for divorce and judicial separation form the great part of the business of the court. The petitions for dissolution on the ground of nullity are few, and those for restitution of conjugal rights do not tend of late to increase very much.
1894 1893 1892 1891 1890 1889 1888 1887 1886 1885 1884
23 2:4 24 2:6 2.9 3:0 2:3 25
2.64 2:45 2:17 2:19 2:18 2.57 2:13 2.25 2:29 2:28
280 26-1 27.7 26:3 22:6 238 16-2 16:4 6:1
4.4 4:3 4.2 5 5 38
Increase per cent.
233.3 In comparing the divorce statistics of different countries, account must be taken of the extent to which assistance judiciaire is granted. In England the orders giving liberty to sue in formâ pauperis are few. The largest number was 38 in 1891, and the annual average is about 10. Very different is the state of things in some other countries. It has been pointed out that a great increase in the number of petitions for separations took place in France after the passing of the Law of January 22, 1851, relative to assistance judiciaire. Of late applications for such assistance have been more freely granted ; and it appears that in 1891 (when the orders in formâ pauperis in England were 38) the following petitions for assistance judiciaire were admitted in France ;Divorce
7,834 out of 17,867. Separation
4,689. In Italy in 1893 the petitions for gratuito patrocinio were 49,888. Further, an order in formâ pauperis made in favour of a petitioner in this country, does not, as in some countries, give him the assistance of counsel and solicitor. It merely releases him from the obligation to pay certain fees, amounting to about 61.
In making comparisons between the statistics of other countries and of England account must be taken not merely of the procedure as to assistance judiciaire but also of the difference in the laws as to divorce. In some the grounds for divorce are the same in the case of husbands as in the case of wives. In some conntries a long list of valid grounds for divorce is recognised. The French Law of the 27th July 1884 admits as grounds of divorce not merely ezcès, sévices, injures graves, but conviction for crimes involving aggravated punishment; and it permits (Article 310) a judgment for judicial separation to be converted, at the instance of one of the parties, after the expiration of three years, into a judgment for divorce. On the other hand, the law of Italy does not recognise divorce a vinculo matrimonii. Subject to these explanations must be read the following tables. The usual tests of the increase of divorce are: (a) the
* Decree nisi. It seems clear that
(a ) In all the above countries petitions for divorce are increasing though of late years the increase has not been so rapid as in some former years.
(6.) The increase has been greatest in France and Belgium, but in these two countries the increase in the latest years above-mentioned was not so great as in 1885-1889.
(c.) In England at all events there is a marked instability in the figures, and a high rate of petitions for divorce in one year is often followed by a diminution in the number, or an increase not so great.
(d.) The proportion of petitions for divorce to marriages and that of divorces to population in England are less than they were, and the years in which the latter proportion was highest were 1886, 1887, and. 1890.
(e.) Tested by population, the divorces in England are about one-twelfth to one-seventeenth of those in France, and somewhat more than one-half of those in Scotland.
The fluctuations do not closely correspond to those in the High Court actions. It will be seen from diagram No. 1 that since 1867 there is a great difference between the carves representing writs in the High Court and plaints in the County Courts. As alreaıly pointed out, there is reason to think that variations in the volume of Lunty Court plaints depend somewhat more directly on trade depression war the business of the High Court. The actions determined, i.e., actions tried, or in which judgment is entered up in default of defence, have risen more than 90 per cent. ; that is to say, in a much greater proportion than the plaints.
There has been no great increase in the average amount for which plaints were issued. The courts, it is clear, are still mainly used for the purpose of collecting small debts. In fact, the average amount of a plaint is less than it was in 1873-77. At the same time, it will be noted that there has been a very large increase in the plaints for £50 and upwards, entered by consent, under the 17th section of 13 & 14 Vict. c. 61, and section 64 of the County Courts Act 1888. During the years 1863-67 they amounted to 61, i.e., an annual average of 12. In 1893-94 the average was 1298.
Average Amounts of Plaints. 1893-94 £3 1 0 / 1873-77
£3 4 6 1888-92 2 19 4 / 1868.72
2 16 10 1883.87 3 1 7 1863-67
2 6 11 1878-82 3 3 9 1858-62
2 8 10 It should be mentioned, however, that there is a slight increase in the average amount recovered, which has risen from £2 ls. 8d. in 1858-62, to £2 11s. 1d. in 1893-94. The largest aggregate amount recovered in any one year was in 1894 ; the increase in 1893-94 as compared with the amount recovered in 1858-62, being no less than 93-9 per cent. Not even in the period in which there was a decrease in the number of plaints was there a decrease in the average amount recovered.
(To be continued.)
IX.--THE ADMIRALTY COURT. The only important legislation affecting the Court of Admiralty since 1876 has been the appointment of certain County Courts to have Admiralty jarisdiction under the County Courts Admiralty Jurisdiction Acts 1868 and 1869; the limit in salvage cases being 10001. value of the property salved, or 3001. the amount of claim; in claims for towage or necessaries, 1501.; in claims for damage to cargo or collision, freight, demurrage, &c., 3001., and beyond these limits by consent of the parties. The Court of Passage at Liverpool has similar jurisdiction.
In the business of the Admiralty Court there has been, on the whole, a considerable increase. The nature of the changes which have taken place will appear by comparing the state of business in 1893.94 with that described in a memorandum prepared in 1867 by the late Mr. Rothery, Registrar of the Admiralty Court. In this memorandum he pointed out that the number of causes instituted had increased from 228 in 1841 to 6:37 in 1866, and that the greatest number in any previous year was in 1860 , when 562 causes were instituted. In 1893-94 the annual number of causes instituted was 513, exclusive, it should be added, of a few writs issued in the district registries and not separately returned. To these must be added 606 causes begun in the County Courts and the City of London Court, making a total of 1119. In other words, there has been an increase of about 75.7 per cent. since 1867.
The amounts claimed have decreased. But little importance can be attached to this decrease, the writs being often issued within a few hours after a collision has occurred or a salvage service bas been rendered, and hefore the cost of repairs or the value of the vessel has been ascertained. The claims are often very loose estimates, and in many cases no figures are inserted. In 1862-66 the annual average amount claimed 962,8161., while in 1891-94 it was only 460,1701. To this must be added the claims in the County Courts, amounting in 1894 to 67,4881. The inmber of final judgments and decrees has slightly increased, from 172 in 1862-66 to 223 in 1891-94.
The number of references to the Registrar and merchants, for the most part as to damages by collisions, had increased, Mr. Rothery's memorandum stated, from 2 in 1811 to 53 in 1866. In 1886.90 the annual average was 110, and in 1891-94 it was 99
The number of days on which the court sat rose, according to the above memorandum, from 38 in 1811 to 147 in 1865. In 1891-94 the annual average was 184.
It will be noted that there has been a considerable increase in the claims for collisions, which were as follows :Average annual
nuo ber. 1891-94 256 1876-80
170 1986-90 213 1871-75
Increase, 50 per cent. One class of causes, described in the returns as “ other causes," and underetood to include claims on charter-parties and bills of lading, involving questions as to freight, demurrage, &c.. has recently increased. They were 31 in 1892, and in 1893 they were 174. It is known that in 18:15 they again fell, and there is good reason to believe that some of them have been dealt with in the Commercial Court. Actions for masters' and seamen's wages have become very rare. Other remedies, such as are provided by the Mercbant Shipping Act, are doubtless made use of.
No important naval war baving taken place during the period covered by the table, there has been no prize business; and the cases under the Slavery Acts have been fow.
X.--COUNTY COURTS AND OTHER INFERIOR COURTS. During the period covered by the comparative table at page 120, were passed several Acts affecting the jurisdiction of the County Courts. The chief of these was the County Court Act 1867 (30 & 31 Vict. c. 142). "This Act (sect. 5) deprived of costs a plaintiff in the Superior Courts, who recovered a sum not exceeding £20 in contract and £10 in tort. Sections 7 and 10 gave power to remit to the County Court, actions of contract where the claim did not exceed £50, and actions of tort on an affidavit that the plaintiff had no visible means of paying the costs. The Act also gave the County Courts jurisdiction in certain cases of ejectment, sect. 11. The County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71, as amended by 32 & 33 Vict. c. 51) gave certain County Courts Admiralty jurisdiction, c.9., in salvage cases where the property salved did not exceed £1000, or the amount claimed £300. The jurisdiction of the County Courts was still further enlarged by the Act of 1888 (51 & 52 Vict. c. 43), which authorised the remission from the High Court to the County Courts of actions of contract in which the claim did not exceed £100.
During the thirty-seven years covered by the table, while population has increased 54:4 per cent., plaints bare increased 58:1. The largest number of plaints in any ore was in 1894, when the total was 1,167,886.
So far back as 1830, the Lord Chief Baron in Rarald v. Russell (Younge's Reports, 9, at p. 21) said that “ It is now established that the tenant for life is bound to keep down the interest (on a mortgage over the settled property], and to do no more. The remainderman, or reversioner, has now no remedy to obtain an extinction of the mortgage. It is a corollary to the change in the rule of the court, that the owner of the fee must give the tenant for life the option of redeeming. Whether the suit be brought by the mortgagee to foreclose, or by the owner of the fee to redeem, the tenant for life must always have first an option to redeem.” The mortgagee in that case had an estate pur autre vie in the equity of redemption, and so the case was on all-fours with Prout v. Cock (noted ante, p 36), where the mortgagee of the fee was also mortgagee of the particular estate in the equity of redemption. Mr. Justice North consequently decided that the reversioners could not redeem the mortgagee without his own consent, so long as the particular estate existed.
THE courts cannot as yet interfere to save the forfeiture of a lease which has been assigned without leave, when leave is necessary, though it is, perhaps, not improbable that some day they will have power to do so. One thing, however, Parliament has done for lessees who are fettered with the condition of not assigning without leave, and that is that such a condition sball, “ unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent” (Conveyancing Act 1892, s. 3). The object of this clause is obviously to prevent a landlord from using his right to refuse bis consent to an assignment as a means of extorting money from his tenant. The Court of Appeal in Re Cosh's Contract (noted ante, p. 60) have held that that provision relates to an absolute payment of money, and does not forbid the lessors of a building lease requiring a sum to be deposited as security for the performance of covenants in a lease with reference to the buildings. There is no extortion in a landlord requiring some security for the due performance of building covenants, as be may feel doubtful as to the power of the assignee to perform them, and when they are performed the money will be returned.
Percentage of Increase
or Deere are over preceding Quinquennial
DRAFTSMEN are simply perverse when they do not insert the vendor's name in the memorandum of agreement attached to conditions of sale. They run the risk of making the whole contract an unenforceable one by their omission. Filby v. Hounsell (75 L. T. Rep. 270; (1896) 2 Ch. 737) may give comfort to some of those who have erred in this way.
That was an action for specific performance, and Mr. Justice Romer said: “For the purpose of satisfying the Statute of Frauds, it appears to me sufficient, so far as parties are concerned, that the written contract should show who the contracting parties are, although they, or one of them, may be agents or agent for others, and it makes no difference whether you can gather the fact of agency from the written document or not. Who the principals are may be proved by parol. That is well settled.''
1893-94 1888-92 1883-87 1878-82 1873-77 1868-72 1863-67
The case of Attorney-General v. Lord Sudeley has shown some differences of judicial opinion, but the point in dispute is a short one. A testator domiciled in England by his will left a fourth of his residuary estate to bis wife. His will was proved in England, but while his estate was being administered his wife died, and her will was proved in England. Part of the testator's estate was invested on mortgages of real estate in New Zealand. The wife's executors refused to include the share in the mort. gages in their affidavit made for purposes of probate. They contended that the local situation of the asset would determine its liability to probate duty, and that these were mortgage debts situate in New Zealand. The Divisional Court held that the executors were right, and Lord Esher was of the same opinion. Lords Justices Lopes and Kay took a different view. As neither the wife nor her executors could have claimed any part of her husband's estate in specie, but all that the wife's executors could claim was that it should be administered ; as the husband was domiciled in England, his will was proved in England, his executors were in England, his estate was being administered in England, and the money recoverable would be brought to England, it was, in their opinion, an English chose in action recoverable in England, and as such was an English asset and subject to probate duty here. So far, however, there had been three judges in favour of the executors, and only two in favour of the wn. This encouraged an appeal to the House of Lords, who did not even call upon the Crown to answer the arguments of the appellants, but affirmed the decision of the majority of the Court of Appeal (noted ante, p. 59).
The Lord Chancellor (Lord Halsbury) was entertained last Wednesday at a complimentary dinner at St. Stephen's Club, of which he is an original member, in celebration of his being for the third time Lord Chancellor of England. A numerous company assembled, covers being laid for 180. Mr. W. G. Ellison Macartney, M.P., Secretary of the Admiralty, presided, and among those present were Mr. W. L. Jackson, M.P., Sir H. Seymour King, M.P., and Sir Edward Clarke, Q.C., M.P.
The “record " fee for counsel's opinion, says the Pall Mall Gazette, has just been given --a thousand guineas--in a bicycle tyre case.
The county magistrates at Driffield on the 20th inst., sentenced Henry Levitt, a youthful glass-worker, of Castleford, to a month's hard labour at Hull Gaol, for stealing one Portugal onion, valued at ld.
The committee of the Wolverhampton Law Society, which was formed in 1847, have decided to celebrate its Jubilee by a dinner on the 8th Jan. next. Sir H. H. Fowler. M.P., and Mr. Joseph Addison, president of the Incorporated Law Society, have signified their intention to be present.
The Benchers of the Ontario Law Society have just passed rules admitting ladies to the Bar under an Act of the Provincial Legislature giving them power to do so. The rules stipulate that lady barristers must appear in court in a black dress under a black gown, with white collar and cuffs, and bare-headed.
At the banquet of the Worshipful Company of Farriers at the Fish. mongers' Hall on Monday last, among the speakers were Mr. Samuel Pope, Q.C., Mr. C. M. Warmington, Q.C., Mr. F. O. Crump, Q.C., and Mr. L. E. Pyke, Q.C. The other members of the Legal Profession present were Messrs. E. Lewis Thomas, W. H. Herbert, M. D. Warmington, W. de B. Herbert, barristers; and Messrs. Wynne E. Baxter (clerk), Lambert, Hunter, Pyke, Andrew, Dibdin, solicitors.
Mr. William Osborn Boyes, solicitor, clerk to the Barnet magistrates and Registrar of the County Court, bas been ordered by the justices to pay a fine of 18. with 88. 6d. costs, for allowing an unmuzzled dog to be at large. Defendant pleaded guilty, and said the dog got out on Sunday week while he was from home. The chairman of the Bench evoked some laughter by remarking that, as this was the first time Mr. Boyes had appeared before them as a defendant, he would be leniently dealt with.
About £960 has been subscribed to the fund for erecting a memorial statue at Rugby of the late Judge Hughes, the anthor of “ Tom Brown's School Days.” The committee, of which Mr. Goschen, First Lord of the Admiralty, who is an old Rugby boy, is the chairman, has decided that any money remaining over after the cost of the statue has been met shall be given to the Home Mission work connected with Rugby School, and carried on by the assistance of past and present Rugbeians. Boys clubs have been established by the mission in London and in Birmingham, and are doing good work among the poorest class of boys.
Since the rule came into force by which law officers of the Crown are precluded from accepting business except in the Government service, the appearances of Sir Richard Webster and Sir Robert Finlay in court have been of very rare occurrence, says the Daily Telegraph. In fact, it is anticipated in legal circles that the rising race of junior members of the Bar will not even know the learned gentlemen by sight should they remain in office much longer. It may not be generally known also that when they vacate office and become ex-law officers they require a special fee of fifty guineas before appearing in any case in court. The gentlemen at present in that happy position are Sir Edward Clarke, Sir rank Lockwood, and Sir Robert Reid.
The controversy as to whether the “ Order of the Coil” has been virtually abolished cannot apply to Ireland, where the order is undoubtedly in existence. Serjeants-at-law in Ireland are to this day appointed by letters patent, and have precedence over all the Bar except the Attorney and Solicitor-General. The serjeants-at-law in Ireland are deemed to hold an office under the Crown, but in the letters patent the person appointed is called merely Serjeant-at-law. The honour of the Coif in Ireland has, however, for upwards of two centuries been confined to their holders, who are named respectively the first, second, and third serjeants, taking precedence in order of seniority. The Irish Serjeants resemble rather the King's Serjeants in England in former times in their office than the numbers of the general body of the Order of the Coif. Thus till within the last decade a serjeant was entitled as of right to a brief in every Crown case tried on a circuit of which he was a member.
So, too, when a member of the Bar is to be appointed a Commissioner of Assize, a serjeant is in practice regarded as having a preferential claim to the appointment. A change of Government does not affect the status of the members of the Order of the Coif in Ireland. In 1627 the King's Serjeants in Ireland became the Prince Serjeant. The holder of this great office had precedence of the Attorney-General and the SolicitorGeneral. In 1805 the office of Prince Serjeant was abolished, and that of First Serjeant established in substitution. The office of Second Serjeant-atLaw in Ireland was created in 1627, and that of Third Serjeant in 1682. Changes of Ministry in Ireland produce occasionally curious alterations in precedence at the Bar. Thus in 1892 the Right Hon. Charles Hare Hemphill, Q.C., who had been First Serjeant since 1885, became Solicitor. General. In 1895 Mr. Hemphill on vacating that office became entitled to tbe mere precedence conferred upon him as a Queen's Counsel and now takes rank after the Law Officers of the Crown, the then Serjeants and all the members of the Bar who have taken silk before him. In England County Court judges take precedence of serjeants-at-law. The order of precedence in Ireland on the first establishment of County Court judges in 1877 following the English mode gave to those dignitaries precedence of of the Serjeants. This arrangement was, however, subsequently altered and in Ireland Serjeants take precedence of the County Court judges at the Irish Viceregal levees.
The Judicial Committee of the Privy Council commence their sittings on Tuesday, the 1st Dec.
Neither Appeal Court I. nor II. were open last Saturday, and the court work of the Queen's Bench Division was represented by three judges only
- Justices Cave, Charles, and Wright, and the former and the latter had finished their lists before 11.30. Justices Collins and Lawrance were engaged in the privacy of chambers hearing commercial and ordinary summonses respectively. Mr. Justice Hawkins was at the Old Bailey, and seven of the other judges were on circuit.
London special jury actions will be taken on Monday. The following are the only causes ready for trial, viz. : Hutchinson v. Pound and another, Isaacson v. Elliott, Son, and Boyton, Abrahams and Co. v. Wolf, Derenberg and Co. v. Anglo-Continental Gola Syndicate Limited.
In the Queen's Bench Division Mr. Justice Williams will take the following assigned actions on Tuesday next: Ward v. Allen and Sons, Clough v. Ker, Phillipps and others v. Jones, Same v. McNicoll.
Mr. Justice Collins, the President of the Railway and Canal Commis. sion, has fixed the 1st Dec. as the date when the court will sit to hear the cases which bave been entered for trial. The Commissioners have not been able to meet earlier owing to Mr. Justice Collins baving to try the Commercial causes in the absence of Mr. Justice Mathew on circuit.
The following cases are appointed for hearing at the sittings of the Railway and Canal Commission Court, commencing next Tuesday, the 1st Dec. : South Yorkshire Coal Owners' Assurance Society v. Midland Rail. tray Company (part beard), Mapperley Colliery Company v. Midland Railway Company, North Staffordshire Railway Company v. Midland ('oal, Coke, and Iron Company, Mersey Railway Company v. Wirral Railway Company, Shoesmith and Sons v. London, Brighton, and South Coast Railway Company.
The Lord Chancellor (Lord Halsbury) presided over a meeting of the Rule Committee of the Judges, held at the House of Lords, on the 19th inst., for the purpose of considering further the draft scheme of the revised and consolidated Rules of the Sapreme Court, this being the second meeting for the purpose. The members of the committee present, in addition to the Lord Chancellor, were the Lord Chief Justice (Lord Russell), Sir Francis Jeune, Lord Justice Smith, Mr. Justice Chitty, Mr. Justice Charles, the Solicitor-General (Sir Robert Finlay, Q.C., M.P.), Mr. Cozens-Hardy, Q.C., M.P., and Mr. J. Addison, President of the Incorporated Law Society.
“Lord James of Hereford " is the title of the fifth of a series of articles cn Our Judges and Famous Lawyers now appearing in Lloyd's Weekly Newspaper.
Sir Richard Webster (.C., M.P. (Attorney-General) presided last Monday at the annual smoking concert of the Royal Courts of Justice Staff Sick and Provident Fund held at the St. Martin's Town Hall, Charing Cross. There was a very large gathering of persons more or less connected with the Legal Profession.
Sir Frank Lockwood, Q.C., M.P., will be the guest of the Lord Mayor and Lady Mayoress of York, at the Mansion House, during his stay in York, on the occasion of Mr. Bancroft's reading on behalf of the York County Hospital, on Wednesday, Dec. 16.
The following gentlemen baving been approved by the Lord Chancellor as Queen's Counsel, were called “ within the bar” at the Law Courts last Monday :--Messrs. W. R. McConnell (Chairman of the London County Sessions), H. Bargrave Deane, R. H. Amphlett Llewellyn, A. AtherleyJones, John Strachan, C. A. Russell, L. Colville Jackson, and H. F. Boyd.
Ten students were called to the Bar this term by the Hon. Society of Gray's-inn, and not three as mentioned in our Occasional Notes last week. The names of those called were bowever fully set out in another part of
Mr. Charles Bischoff, solicitor, of the firm of Bischoff, Coxe, and Bompas, 4, Great Winchester-street, London, who died on the 26th Oct. last at the age of ninety-four, has left personal estate valued at £29,117 118. 1d.