« EelmineJätka »
within their experience, been enormous ; in some cases as much as 60 per cent. in a few years. Receiver's Accounts.
the amount of exports. The period in which there was a minimum was 1890, which has been described as a year of “great financial disturbance, a year in which trade had exceptional difficulties to encounter.”
(To be continued.)
COMMENTS ON CASES.
1158 1217 1266 979 835
405,287 346.305 486,350 456,178 428,677
The point raised by the counter-claim in The Sneyd and Kelly's Credit Index Company v. Saunders and Chapman (75 L. T. Rep. 193) was admittedly one primæ impressionis. No reported case was referred to. As Mr. Justice Stirling is reported to have said when the case was before him, no anthority has been produced that a tort-feasor--a libellor, who has libelled a person--has ever succeeded in an action, ught by him because somebody else called the attention of the libelled party to the libel.” In the present case the second defendant, a solicitor, having been consulted by the defendant Saunders as to statements in a trade “ credit index ” which Saunders regarded as libellous, and for which he subsequently obtained a decision in his favour, showed the book to two others who were similarly libelled. As regards the defendant Saunders, he had only made a legitimate use of the book in consulting his solicitor upon the statements affecting him, and the defendant solicitor owed a duty to his client Saunders in the matter, but to no one else, not having entered into a contract not to disclose the contents of the book. Accordingly the Court of Appeal (affirming the decision of the learned judge in the court below) had no difficulty in dismissing the appeal, Lord Justice Rigby going so far as to hold that a solicitor in such a case might be bound to disclose
a gross and malicious libel.
It is sometimes asked “Whether the property in Chancery is increasing?" If by this vague question it is meant “ Are there more suitors' accounts open ?” "Is there more money standing to the credit of suitors' funds ? " the answer must be that in the period included in the table there has been a slight increase in the number of suitors' accounts -- from 33,467 to 35,035—while in the balances on suitors' accounts there has been a decrease from £70,405,746 to £64,075,187. If the question means “ Have the number of receiver's accounts and other accounts or the amount of receipts decreased ?” the answer must be that both the number of accounts and amount of receipts have fallen ofl since 1871-75 and that the Companies (Winding-up) Act 1890 and recent Orders as to administration have greatly diminished the volume of administrative work. If, as is probable, by this question is meant “Is the amount of property affected by judgments, orders, schemes, or directions, which are being Forked out, greater or less than it was ?” there are no data for an answer. But the tendency is to make fewer orders for general administration and to ensure more rapid administration or distribution.
It will be noted that the working days of the Division are considerably greater than they were: the judges, now five in number, sat 659 days annually in 1871-75 as agaiust 1166 in 1891-94.
Reference may be here made to the expansion of the business of the Court of Chancery of the County Palatine of Lancaster, as appearing in Table L. Of late years there has been a remarkable increase in the proceedings begun. The annual average in 1888-92 was more than three times that in 1863.67. The payments into and out of court rose from £97,159 and £67,772 in 1858-62, to £333,639 and £343,771 in 1888-92.
VI.—THE QUEEN'S BENCH DIVISION. Comparative Table F shows the history of the Queen's Bench Division since the passing of the Judicature Act. Some of the chief results recorded in the comparative table appear in the following summary of the anmal averages under the principal heads. Figures showing the growth in population and wealth have been added. As a rough measure of the latter has been taken the yield per penny of the income tax.
The judgments delivered in the Court of Appeal in Re Chapman ; Cocks v. Chapman (75 L. T. Rep. 196), reversing 73 L. T. Rep. 658; (1896) 1 Ch. 323), since no reference is made in them to the question decided by Mr. Justice Kekewich in the court below as to the retrospective operation of sect. 4 of the Trustee Act 1893 (Amendment) Act 1894 (57 & 58 Vict. c. 10), would appear to have left the decision of that learned judge upon the point unaffected. As pointed out by Lord Justice Lindley (75 L. T. Rep. at p. 199), there was in that case no summons to vary the chief clerk's certificate which raised the question of the trustee's liability, having regard to the provisions of that section, and in consequence an order was made on the trustees rendering them responsible for not calling in certain mortgages of agricultural properties, investments made by the testator, his will containing a direction to his executors to invest the trust fund thereunder in “good real or Government security.” The Court of Appeal held that the trustees in the above circumstances retaining the mortgages-securities authorised by the investment clause although in a falling market-were, without the assistance of sect. 4 (sup.), enacting that “a trustee shall not be liable for breach of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorised by the instrument of trust or by the general law," able to escape liability for breach of trust in retaining the mortgages : (Re Medland, 60 L. T. Rep. 781, 851 ; 41 Ch. Div. 476, 481). It is submitted, therefore, that Mr. Justice Kekewich's decision holding sect. 4. not to be retrospective is still, in that respect, a binding authority. In arriving at that conclusion his Lordship followed the law as laid down by Lord Hatherley in the case of Pardo v. Bingham (20 L. T. Rep. 484); L. Rep. 4 Ch. 753), to the effect that, anless there is a clear indication from the statute itself, from the parview of it, or from the former state of the law and the remedy sought to be applied, a statute ought not to be held to operate retrospectively, and drew attention to the provisions of sects. 8 and 9 of the Trustee Act 1896 (50 & 57 Vict. c. 53), by which those sections are made expressly retrospective. The result of the above considerations, therefore, appears to be that, in the present state of the authorities, a trustee who is unable to escape liability for an alleged breach of trust by continuing to hold an investment on the grounds upon which the Court of Appeal decided Re Chapman (sup.), viz., that he exercised an honest although mistaken discretion with regard to an authorised security, cannot, where the investment was made before the 18th June 1894, successfully use sect. 4 of the Trustee Act of that year by way of defence.
A decrease or an increase in the business will appear according to the year with which a comparison is made ; and to appreciate the above figures reference must be made to earlier dates. In 1863 there was a great development of trade, which continued until 1866, and it was accompanied by an unprecedented rise in the number of writs. After the commercial crisis of 1866 came years of bad trade, accompanied by a great fall in the number of writs. An improvement in trade in 1870, 1871, and 1872 was followed by a slight rise in the number of writs. It is noteworthy that in 1876, which was a year of depression, there was a considerable rise in the number of writs, though the writs were far below the maximam reached in 1866-67. A great rise in the number of writs in 1866; a fall from that date; then an increase in the number of writs--such were the changes immediately preceding the Judicature Act 1875.
In 1866 the writs (133,160) were no fewer than one to every 161 of the popnlation, while in 1871-75, the period immediately before that covered by the comparative table, they had fallen to 1 to every 360 inhabitants. In subsequent years the maximum was reached in 1878-79, years in which there was a decline in trade, low wages, a low marriage rate, and a fall in
Chancery final appeals will be resumed on and after hursday next.
The Solicitor-General, Sir R. B. Finlay, Q.C., has been elected captain of the Wimbledon Golf Club.
The Erening News says: Mr. Justice Cave, it is said, by way of recreation, often Aies a kite.
“ Lord Herschell"is the title of the second of a series of articles on Her Majesty's Judges and Famous Lawyers now appearing in Lloyd's Weekly Neurspaper.
Lord James of Hereford left London last Vondry for Balmoral, as Minister in attendance on Her Majesty.
Lord Justice Kay, who recently underwent a painful operation, was able, for the first time, to leave his bed for a few hours last Tuesday.
The library of the late Lord Coleridge is on sale by Ashton Nield, bookseller, 30, Park-street, Bristol.
A telegram from Rome states that the Minister of Justice, Signor Costa, has just drafted a measure to provide for the indemnification of persons who are wrongly condemned by the courts.
The marriago arranged between Mr. F. H. Maugham, barrister-at-law, of 3, New-square, Lincoln's-inn, and Helen Mary, eldest daughter of the Hon. Mr. Justice Romer, will take place in December.
A man giving the name of Paul Gorman was charged at the West London Police-court last Monday with attempting to commit a burglary at the residence of Mr. Justice Romer. The accused was remanded.
The Lord Chancellor of Jreland has nominated Mr. Justice Madden to be assistant judge for the administration of the record of the Title Act 1865, and of the local registration of the Title Act 1891.
Last Tuesday night's London Gazette announces the knighthood conferred upon Mr. Henry Spencer Berkeley, Chief Justice of Fiji, and Chief Judicial Commissioner for the Western Pacific.
On Wednesday morning the Lord Chief Justice intimated in the course of a discussion as to expediting a case that, in consequence of the illness of Lord Justice Kay, he would on returning from circuit sit in the Second Court of Appeal.
The annual smoking concert in connection with the Royal Courts of Justices Staff Sick and Provident Fund will take place at St. Martin's Town Hall, Charing Cross, on Monday evening, the 23rd inst. The Attorney-General, Sir Richard Webster, Q.C., M.P., will preside.
The November general sessions of the peace for the county of London were commenced at Clerkenwell last Monday for the disposal of cases arising on the north side of the Thames. There are some sixty persons involved in alleged offences.
There are two registration appeals only arising out of the recent revision of the lists of voters in England and Wales, and these case will be heard before a court of three judges of the Queen's Bench Division on Saturday the 14th inst.
The Judges who are expected to attend the Lord Mayor's banquet at the Guildhall on Monday evening are the Master of the Rolls (Lord Esber), Lord Justice Lopes, Sir F. Jeune, Mr. Justice Barnes, Mr. Justice Grantham, and Mr. Justice Kekewich.
Mr. Peter Griffin, a grand juror and magistrate for county Limerick, and sub-commissioner under the Land Act, committed suicide, last week, by shooting himself with a revolver while staying at a Limerick hotel. The deceased was about fifty years of age.
The judges of the Probate, Divorce, and Admiralty Division will soon have nothing to do, and, in view of the heavy cause lists in the Queen's Bench Courts, a solicitor writes to the Daily Telegraph to suggest that one of the Probate judges should at once assist in the other division.
The movement for the incorporation of Westminster is attracting considerable interest from all sides. The unique historic importance of the ancient city appeals strongly to the imagination of many advocates of incorporation, and attempts are being made to justify the appeal for a charter chiefly on these grounds.
Mr. G. Bettesworth Piggott, barrister-at-law of the Middle Temple, recently appointed by the Marquis of Salisbury to the new office of Judicial Officer in British Central Africa, under the administratorship of Sir Harry Johnston, has arrived at Durban by the United States steamship Moor, on his way to Chinde.
The will of Mr. George Menzies Clements, of 17, Gresham House, Old Broad-street, and 7, The Terrace, Camden-square, solicitor, who died on the 12th Sept., at Wiesbaden, was proved on the 19th ult., by Mr. Jobn Henry James, of Norfolk House, Norfolk-street, Strand, the surviving executor, the value of the personal estate being £25,852 16s. 2d.
Mr. Justice Hawkins completed last Monday twenty years of service on the Bench. On the 2nd Nov. 1876 he succeeded Mr. Justice Blackburn, who was then made a Lord of Appeal in Ordinary. Sir Henry Hawkins reached his seventy-ninth birthday on the 14th Sept. He was admitted a student of the Middle Temple as far back as April 1839.
For the first time in the history of New York State Courts, women have been appointed receivers in supplementary proceedings in insolvency. The appointments were made by Justice MacLean in the Supreme Court of the county, and are three in number, being Miss Rosalie Loew, Mrs. E. S. Warner, and Mrs. Anita Haggerty, all members of the New York Bar.
The Hon. William McKinley, the new President of the United States, is a lawyer. He was born at Niles, on the 29th Jan. 1813. He comes of a Scotch-Irish stock, which went to the New World early in the eighteenth century. Adoptivg law as a profession, he was admitted to the Bar in 1867, and, settling at Canton, Ohio, rapidly gained a place in local politics.
The sittings of the Law Lords for the transaction of judicial business during the Recess will commence on Thursday, the 12th Nov. The present list, which we print in another column, consists of sixteen cases, of which twelve are English and four are Scotch
there being no Irish cases entered. There are also no less than sever appeals awaiting judgment, among them being the case of Err! Rupee!! v. Counters Russell.
Mr. Alfred Billson, who has consented to contest East Bradford in the Radical interest, is the son of a Leicester banker, and is fifty-seven years
He was admitted as a solicitor in 1860, and has for many years been a partner in the firm Oliver Jones, Billson, Jones, and Madge, of Liverpool. In 1892 Mr. Billson was elected for the Barnstaple Division of Devon by a majority of 147; but in 1895 Mr. Billson was defeated by Sir W. C. Gull by the narrow majority of 68.
The new town clerk of Windsor, Mr. Philip Lovegrove, is a native of the Royal borough. As a boy be entered the office of Mr. Long, who was clerk to the borough magistrates, and, in the course of time, having obtained his articles, became a member of his employer's firm. He is at present clerk to the magistrates of Windsor borough, and joint clerk to the county benches of New Windsor, Berks, and Stoke Hundred, Bucks. He is a member of the Incorporated Law Society, the Justices' Clerks Society, and the Berks, Bucks, and Oxfordshire Incorporated Law Society.
Mr. Henry Mason Bompas, Q.C., who has been appointed a County Court judge in the place of bis Honour Judge Gates, is sixty years old, having been born in 1836. He is the youngest son of the late Mr. Serjeant Bompas. He was educated at St. John's College, Cambridge, and the London University. At the University of London he obtained the gold medal for mathematics at the M.A. Examination in 1857, and in 1858 he was fifth Wrangler at Cambridge. In 1862 he took the London LL.B. with honours in five branches, and was elected a Fellow of University College. He is a member of Convocation, and Recorder of Plymouth and Devonport. He was called to the Bar in 1863 and made a Queen's Counsel in 1877. He is also a Bencher of the Inner Temple.
During the hearing of th case of Fairclough v. The Manchester Ship Canal last Tuesday, Mr. Justice Kekewich (addressing Mr. T. R. Hughes, the junior counsel for the plaintiffs, who practises in the Lancaster Palatine Court) said he had recently learnt through the usual channels of information that official shorthand-writers were in future to be employed to take the evidence in cases in the Palatine Court.-Mr. Hughes said that was so.
The expense of taking the notes would be defrayed by the Duchy, but transcripts would be taken at the expense of parties desiring to have them.-Mr. Justice Kekewich: It is an interesting departure. There is a difference of opinion on the subject on the Bench ; but I say nothing more. I only ask for information.
Addressing the grand jury at Cheshire Assizes last Wednesday, Mr. Justice Mathew said that two-thirds of the prisoners were charged with indecent offences. These cases were the despair of magistrates and judges, and it had been suggested that an attempt should be made by severer punishment to repress them. It had been said that the lash should be employed, but one ought to be very slow, for the credit of the country, in admitting that Englishmen could only be deterred from offences of that abominable kind by the lash. He hoped that the nineteenth century had a better message for the century that was to follow than that mora discipline could only be maintained in England by means employed in some gaols on hardener criminals. It might be that those who trained the young paid less attention to their moral than intellectual training, but he still hoped the real means of repression would come from that quarter.
NOTES OF RECENT DECISIONS NOT
COURT OF APPEAL. Bankruptcy-Bankruptcy Notice-Service-Partnership Firm-Serric
on Receiver and Manager appointed by Court – General Rules in Banke ruptcy 1883, 1, 260.--Rule 260 of the General Rules in Bankruptcy 1883 provides that: “Any notice or petition for which personal service is necessary shall be deemed to be duly served on all the members of u firm, if it is served at the principal place of business of the firm in England, on any one of the partners, or upon any person having at the time of service the control or management of the partnership business there." Messrs. Ware and Co. obtained a final judgment against the firm of Messrs. Flowers and Co., in which there were five partners. An action for dissolution of the partnership was instituted in the Chancery Division by some of the partners in Messrs Flowers and Co. against the other partners. In that action an order was made, upon the application of the plaintiffs, appointing Mr. Ryder to be receiver and manager of the partnership business, and he took possession of the business of the firm under that order. Messrs. Ware and Co. issued a bankruptcy notice in respect of the judgment against Messrs. Flowers and Co., and it was served upon Mr. Ryder at the principal place of business in London of the firm of Messrs. Flowers and Co. Upon defaut in complying with the requirements of the bankruptcy notice, Messrs. Ware and Co. presented a petition in bankruptcy against Mesers. Flowers and Co. The registrar dismissed the petition upon the ground that the bankruptcy notice had not been duly served, inasmuch as the receiver and manager appointed by the court was not a “person having the control or management of the partnership business" with the meaning of rale 260. The petitioning creditors appealed. Held (dismissing the appeal), that the receiver and manager appointed by the court was not
• person having the control or management of the partnership business," within the meaning of rule 260 of the Bankruptcy Rules, upon whom a bankruptcy notice could be served.
[Re Flowers and Co.; Ex parte Ware and Co. Ct. of App.: Lord
E-her, M.R., Lopes and Rigby, L.JJ. Oct. 30:--éounsel : for the appellants, F. Cooper Willis ; for the respondents, Muir Mackenzie. Solicitors : for the appellants, Kingsbury and Turner; for the respon. dents, George Coote.] Company-General Meeting-Voting-Proxies—Blank Date-- Authority
to fill up-Validity-Duly stamped-Stamp Act 1891 (54 3 55 Vict.c. 39), 8. 80.-A notice convening an extraordinary general meeting to confirm a special resolution was accompanied by a circular from the secretary and directors with a form of proxy attached asking for the return of the proxy in support of the resolution. By a printer's error the day and hour of the meeting were left blank in the proxy. The secretary filled up this blank in several of the proxies after they had been executed and returned by the members. It was decided by Chitty, J. (75 L. T. Rep. 221) that, as the members by returning the proxies in compliance with the circular must have intended that they should be used at this particular meeting, the secretary had authority to fill in the date ; and that these proxies were valid and duly stamped within the provisions of the Stamp Act 1891, s. 80. The plaintiff appealed on this point, and also on another point decided by Chitty, J., but on that other point the Court of Appeal reserved jadgment. Held, that sect. 80 of the Stamp Act 1891 did not enact that, if the date was omitted from a proxy at the time it was executed and was subsequently inserted, before the proxy was used, by a person duly authorised to insert it the proxy was to be invalidated ; but that it was enough to insert the date before the proxy was used. Held, therefore, that the appeal on this point must be dismissed. Decision of Chitty, J. affirmed.
Ernest v. The Loma Gold Mines Limited. Ct. of App. No. 2. Lindley and Smith, L.JJ. Nov. 4.-Counsel : for the appellant, Ashton Cross ; for the respondent, Byrne, Q.C. and E. W. Stock. Solicitors : for the appellant, W.T. Hart; for the respondent, Powell and Burt.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Author and Publisher-Publishing Agreement-Assignability-Company
--Receirer-Unsold Copies of Books—Injunction.—The plaintiff, an author of three novels which had been published by the defendant company, sought to restrain the company and the receiver of the company, who had been appointed in a debenture-holder's action, from selling without the plaintiff's consent certain assets comprising (inter alia) unsold copies of books and illustration plates in the possession of the receiver, and also from purporting to sell or assign the benefits, rights, or interest alleged by the defendants to be vested in them under an agreement between the plaintiff and the company.
The agreement provided for payment to the author on the half-profit basis, the company taking all risk in the publication except actual out-of-pocket expenses. On motion for an interim injunction the plaintiff contended that the agreement was merely personal to the parties thereto, and could not therefore be assigned, and that the receiver ought not to deal with the said assets until the trial of the action. In support of the motion the authority of Hole v. Bradbury (41 L. T. Rep. 153, 250 ; 12 Ch. Div. 886) was relied upon. The defendant company were not represented. The receiver submitted that a limited company was not debarred from assigning such an agreement, as the personal relationship between author and publisher or a partnersbip firm of pub. lishers did not exist in the case of a company ; but be offered to give an undertaking as to the assets in terms of the notice of motion. Held, that the principle as to the non-assignability of such agreements extended to a limited company, and an injunction must be granted, but that the undertaking offered by the receiver was sufficient as to the assets.
Griffith v. Tower Publishing Company Limited. Ch. Div. : Stirling, J. Oct. 30.—Counsel : for the plaintiff, Millar, Q.C. and T. B. Sapier; for the receiver, Graham Hastings, Q.C. and Edward Ford. Solicitors : for the plaintiff, Harrison and Davies ; for the receiver,
UcKenna and Co.; the defendant company were not represented.] Bankruptcy-Beneficed Clergyman-Sequestration of Income of Benefice
Discharge of Bankrupt-Continuance of Sequestration.--On the appli. cation of the trustee in bankruptcy of a clergyman of the Church of England and rector of a parish, the bishop of the diocese issued a sequestration of the income of the living, by virtue of which a portion of the income was paid to the bankrupt while performing the duties of the benefice under the order of the bishop, and the residue, after paying thereout the costs and expenses of the sequestration, was handed over to bis trustee in bankruptcy. Subsequently the bankrupt obtained bis order of discharge, the whole of his property available for dividend other than the moneys available by means of the sequestration baving been realised and distributed; but the sequestration was not relaxed by the bishop, the trustee in bankruptcy having refused to take any steps to obtain the relaxation on the ground that the bankruptcy had not been closed; that a dividend of only 8s. 9d. in the pound had been paid, and that the sequestration ought not to be relaxed until the whole of the debts were satisfied. In an action by the clergyman against the trustee in bankruptcy for an injunction to restrain him from receiving the residue of the income of the living, a declaration that the clergy. man was entitled after his discharge to receive the profits of bis benefice, and an order on the defendant to take steps to obtain the relaxation of the sequestration, it was held that the order of discharge did not entitle the clergyman to the profits of his benefice, and the action was dismissed.
Lawrence v. Adams. Ch. Div.: North, J. Nov. 3.-Counsel : H. P. St. Gerrans ; J. G. Wood. Solicitors : Withalls and Belton; (toode, Kingdon, and Cotton, for Coode, Shilson, and Co., St. Austell, Cornwall.]
Post Office Savings Bank- Nomination of Deposits- Nomination by a
Testatrix of an Executor named in her Will Evidence rebutting Presumption of Gift-Savings Bank Act 1887 (50 & 51 Vict. c. 40), 8. 3. -Where a testatrix, subsequent to the execution of her will, filled up a nomination in the prescribed form of the amount (being under £100) due to her by the Post Office Savings Bank at her decease, in favour of one of her executors, and the evidence was sufficient to rebut the presumption that the executor should receive such amount as a gift, it was held that he received the same in his capacity of executor, and he . was ordered to account for the same accordingly.
[Re Read; Turner v. Read. Ch. Div.: Stirling, J. Oct. 29.Counsel : G. E. Tyrrell ; Mulligan. Solicitors : H. Tyrrell and Son, agents for Frank S. Pearson, Birmingham; Smith and Eldridge, agents
for T. W. Walthall, Birmingham.] Practice-Originating Summons, Mortgage-Construction--Jurisdiction
-Rules of Court 1883, Order LIV.A., r. 1.- This was a summons taken out by a mortgagor under R S.C., Order LIV.A., r. 1, for the determi. nation of the following questions : (1) Whether, according to the true construction of the indenture of mortgage dated the 25th April 1892, and made between the plaintiff of the one part and the defendant society of the other part, the plaintiff is now entitled to give to the defendant society a valid and effectual notice of her intention at the expiration of six months from the date of such notice to pay off the principal money now owing upon the security of the said indenture of mortgage, together with all interest at the expiration of such notice due thereon according to the provisions of the same indenture with respect to such interest, and thereupon to have a reconveyance of the premises comprised in the said mortgage security; or whether the defendant society are entitled to insist upon the said principal moneys remaining upon the security aforesaid until the death of the tenant for life in the said indenture named; (2) costs. By the said indenture the plaintiff N. assigned to the defendant society a sum of consols to which she was entitled expectant on the decease of her father C. to. secure the sum of £1100 and interest at the rate of 5 per cent. per annum thereon, subject to a proviso for redemption therein contained. And it was provided that, notwithstanding the covenants thereinbefore contained, neither the principal nor interest should be called in during the life of the tenant for life. A preliminary objection was raised on behalf of the defendants that the court had no jurisdiction to decide the question upon originating summons because the instrument was a mortgage deed, and the person claiming to have the deed construed was a mortgagor, and there was no offer by her to redeem. Held, that the court was competent to decide the question upon originating summons, and that upon the true construction of the mortgage deed the plaintiff was entitled to redeem the security notwithstanding that the tenant for life was still alive. The mortgagees to add their costs to their security.
[Re Nobbs ; Nobbs v. Law Reversionary Interest Society Limited. Ch. Div.: Kekewich, J. Oct. 28 and 29.-Counsel : Renshaw, Q.C. and Godefroi ; MacSwinney. Solicitors: H. Cubitt Ireland ; Caprons,
Dalton, Hitchins, and Brabant.) Settled Land Act 1890, 8. 16-Mansion House-Object of Restrictions.-
W. by will bequeathed certain objects in and about his mansion-house K. House, to be enjoyed by his eldest son as heirlooms during his life, and after his death to be divided amongst the testator's daughters, and the testator devised his said mansion house and all other his real estate to trustees in trust for his son for life, and on his death to be sold and the proceeds divided into numerous shares. The son wished to sell the estate, together with the mansion-house, in exercise of his powers under the Settled Land Acts. The trustees refused their consent, and the tenant for life applied to the court for leave to sell the mansion-honse. Held, that the house, not having been a family seat, and the direc'ion that it should be sold at the death of the tenant for life showing that the testator did not intend to make it one, the case was not one of those to which the exception made by the Settled Land Acts of the mansion-house from the general power of sale given to the tenant for life was intended to apply, and there was no reason why the court should not allow the tenant for life to exercise his discretion as to the sale of the mansion-house as well as the land. Leave was, therefore, given
[Re Wortham’s Estate. Ch. Div.: North, J. Oct. 27.--Counsel : Swinjen Eady, Q.C. and Philpotts; Vernon Smith, Q.C. and l'pjohn. Solicitors : Mear and Fowler; Woodcock, Ryland, and Parker, agents
for 1. Cooke and Sons, Bristol.] Solicitors—Costs—Taration-Scale Fee-Lease in Consideration of Rent
and Premium-General Order under Solicitors' Remuneration Act 1881 Sched I., Part II., r. 5.-A lease was granted at an annual rent of £250. in consideration of a premium of £5000. The lessor's solicitors, in their bill of costs, charged a sum of £40 for negotiating, in addition to the scale fee of £29 in respect of the rent, and the scale fee for deducing: title calculated on the premium. The taxing master disallowed the sum of £40 charged for negotiating. The solicitors took out a summons to review the taxation, claiming that, under rule 5 to Part II. of Sched. 1 to the General Order under the Solicitors' Remuneration Act 1881, they were entitled, in addition to the remuneration prescribed by the schedule in respect of the rent, to a further sum equal to the remuneration on a purchase at a price equal to the premium, and that therefore the charge of £40 for negotiating should be allowed. Held, that the solicitors were paid for negotiating by the scale fee calculated on the rent; and that, if the charge were allowed, they would be paid twice over for negotiating, and summons dismissed.
Re Horn and Francis. Ch. Div. : Chitty, J. Oct. 29.--Counsel :. C. E. E. Jenkins; 0. L. Clare. Solicitors ; Horn and Francis ::. Walfords.)
Held, that the magistrate had no jurisdiction to decide whether or not the sanitary authority had rightly exercised the discretion given it by the Act: but he had jurisdiction over the amount of the fine. The case therefore must be remitted with a direction to convict. Per Wright, J.: There was no necessity upon conviction to inflict any fine in case the magistrate thought the offence committed was not such as to call for such punishment. During the argument the following cases were referred to: Vestry of St. Luke v. Lewis (5 L. T. Rep. 608) : Shertorne Local Board v. Bogle (46 J. P. 675); Hargreaves v. Taylor (8 L. T. Rep. 149).
[V'estry of St. John, Hackney, v. Hutton. Q. B. Div. : Grantham and Wright, JJ. Nov. 3.--Counsel : for the appellant, Beven ; for the respondent, Carrington. Solicitors, Tiddeman; Stones, Morris, and
Stones.] Sale of Food and Drugs Act 1875 (38 & 39 Vict. c. 63), s. 6—Adulteration
-Drug, meaning of-- Beeswax.-Case stated by justices of Cranbrook, who refused to convict the respondent under sect. 6 of the Sale of Food and Drugs Act 1875. The respondent was a grocer carrying on busi. ness at Marden, in Kent, and the appellant, an inspector for the purposes of the Act, purchased from the respondent at his shop some beeswax which was found upon analysis to be adulterated with 50 per cent. of paraffin. The justices held that there had not been a sale of 3 drug” within the meaning of the Act. Counsel, on behalf of the appellant, now contended that the test of whether an article was a drug or not was its appearance in the Pharmacopæia. Beeswax did so appear and was used in the preparation of different medicines. Held (affirming the decision of the justices), that beeswax sold by a grocer is not a “drug” within the meaning of the section.
( Fowle v. Fowie. Q. B. Div.: Grantham and Wright, JJ. Nov. 2.
Counsel: for the appellant, T. Mathew. Solicitors : for the appellant, Warner and Turner, Tonbridge.]
IN BANKRUPTCY. Bankruptcy Fraudulent Preference-- Accommodation Acceptance
Payment by Drawer to relieve Acceptor ---Acceptor a “ Creditor Bankruptcy Act 1883 (46 & 47 Vict. c. 52), 88. 37-48. Prior to the 17th April 1895 the bankrupt had received from one Barnard an accommodation acceptance for £20, which he discounted with his bankers. The act of bankruptcy was committed on the 25th April, and a receiving order was made on the 8th May, followed by an adjudication on the 13th May. On the 17th April the bankrupt paid the sum of £20 to his bankers for the purpose of meeting the accommodation acceptance. Held, that the acceptor, although only a surety, was a
creditor” within the meaning of sect. 48 of the Bankruptcy Act 1883, and on discharging his liability ander his acceptance would have a right of proof under sect. 37, and the payment which relieved him of his liability was a fraudulent preference.
[Re Paine; Ex parte Read v. Barnard. Q. B. Div. in Bank. : Williams, J. Nov. 2:--Counsel: F. Cooper Willis; Muir Mackenzie. Solicitors : W. H. Smith and Son ; Pritchard, Englefield, and Son.]
QUEEN'S BENCH DIVISION. Burial Actz--New Burial Ground - Addition to old Burial Ground
Consecration of Part—16 f. 17 Vict. c. 134, 8. 7.-Rule nisi to the burial board of the county of Southampton to show cause why a mandamus should not issue directing them to apply to the Bishop of Winchester to consecrate a part of an addition made to the burial ground at Basingstoke in accordance with the provisions of sect. 7 of the Burial Act 1853 (16 & 17 Vict. c. 134). That section provides that in all cases in which a burial board shall provide a new burial ground under the Act, that new burial ground shall be divided into consecrated and unconsecrated parts." Counsel on behalf of the burial board now contended that this enactment did not apply to additions made to an already existing burial ground, but only to one which was entirely new. Held (without calling upon counsel in support of the rule), that the section applied to additions to old burial grounds. Rule absolute.
(Reg. v. Basingstoke Burial Board. Q. B. Div.: Grantham and Wright, JJ. Nov. 2.—Counsel : for the board, Lord Coleridge, Q.C. and W. H. Roberis ; for the Crown, Sir R. Tebster, A.-G., and Sutton.
Solicitors : Bayley, Basingstoke ; Solicitor to the Treasury.] Poor Rate-Distress Warrant-Rate upon Land not in Occupation of
the Person assessed-Jurisdiction and Discretion of Magistrates.-Rule nisi calling upon justices of Derbyshire to show cause why a mandamus should not go, directing them to issue a distress-warrant for £23s. 4d., the amount of a poor rate made upon one Bramall, in respect of various holdings under different landlords, all of which were set down in the rate-book as being in the occupation of Bramall. At the hearing of the overseers' application for a distress-warrant, the magis trates held that they had jurisdiction to inquire into the question of Bramall's occupation of the holdings, and, after hearing evidence, decided that one of the holdings rated was in the occupation, not of Bramall, but of his wife, that another was in the occupation of his son, but that a third, which was alleged to be in the occupation of his daughter, was in the occupation of Bramall himself. The evidence showed that Bramall and his wife, son, and daughter all lived together, and that the son worked on his father's farm. It was now contended on behalf of the overseers that, as Bramall was in visible occupation of all the holdings, the inquiry of the justices was an inquiry as to the beneficial ownership, which, on the authority of Reg. v. Bradshaw (29 L. J. 176, M. C.), they, had no authority to make. Held, that the justices had jurisdiction to inquire not only whether the person rated was in actual or visible occupation of the lands assessed, but also whether he was the person having the real mastership or control in respect of these lands.
[Reg. v. Bagshawe and others (Justices) ; Ex parte Bramall. Q.B. Div.: Grantham and Kennedy, JJ. Oct. 29.-Counsel : for the Justices, 0. A. Russell; for the Overseers, R. G. Glenn. Solicitors : for the Justices, P. G. Robinson, for Ainsworth and Shipton, Buxton ; for the Overseers, Campion and Simmons, for Clegg and Sons,
Sheffield.] Public Health-Provision of Water Closets--Discretion of Sanitary
Authority Jurisdiction of Justices—Public Health (London) Act 1891 (54 $ 55 Vict. c. 76), 8. 37 (3 8. 5). — Appeal by case stated from decision of metropolitan magistrate dismissing a summons under sect. 37 (3) of the Public Health (London) Act 1891 (54 & 55 Vict. c. 76). The appellants, the Vestry of St. John, Hackney, were a sanitary authority in the district where a house of the respondent's was situate. Owing to complaints from the respondent's tenant the appellant's inspector visited the premises and reported that they were without sufficient water-closets. The appellants thereupon caused notice to be served upon the respondent requiring him forthwith, or within a time specified in the notice, to provide an additional watec-closet. The respondent failed to comply with this notice. The appellants thereupon laid an information before the magistrate, and a summons issued under sect. 37 (3) of the Public Health (London) Act 1891. At the hearing of the gummons the magistrate expressed a strong opinion that the whole matter arose out of a squabble between the respondent and his tenant, and adjourned the case to see if the tenant cared to enforce by civil action a covenant in his lease binding the respondent to provide proper sanitary conveniences for the premises. On the summons coming on again and the tenant refusing to take steps to enforce the covenant, the magistrate dismissed the summons, holding that the second water-closet required by the notice was not necessary. The sanitary authority appealed, and the question raised for the opinion of the court was, whether or not the magistrate had under the Act any jurisdiction to control the discretion of the sanitary authority as to the need of additional water-closets. For the appellants it was contended that he had no such jurisdiction. The Act gave the sanitary authority an absolute discretion in the matter subject to an appeal to the county council under sect. 37 (5). The jurisdiction of the magistrate was limited to deciding whether proper notice had been served and what the amount of the fine should be. For the respondents it was argued that, though the magistrate's jurisdiction was limited when the sanitary authority themselves executed the works to the ministerial act of enforcing payment of the expenses, the case was different where the sanitary authority proceeded by way of fine. Then the matter became a criminal one, and it could not be contended that the Act gave to a non-judicial body like the sanitary authority a power to declare when a given person was guilty of a crime, subject only to an appeal to the county council which itself was
not a judicial body. Surely in criminal matters the magistrate was the only person entitled to say that a crime had been committed and his functions conld not be limited to deciding what punishment the crime, as fonnd by the local authority, demanded.
TAXING MASTERS DISCRETION. In the Queen's Bench Division of the High Court on Tuesday, during the hearing of an action Verheyen v. Freeman, before Cave, J. and a common jury, his Lordship complained that he was banded up copies of letters torn off, instead of being supplied with a complete copy of the correspondence, and he should therefore disallow the cost of all copies in the action. Mr. Lynch, for the plaintiff, explained that he was always desirous that the presiding judge should be supplied with proper copies : but that the taxing masters babitually disallowed them, and had eren done so in face of the judge allowing them. His Lordship rejoined, with some warmth, that that surely could not be so ; but, if it were the case, the master should be brought before the Divisional Court, and he would soon be set right; in fact, he was not sure that he would not be sent to prison for contempt of court.
OUR LITERARY COLUMN.
STORIES FROM THE LAW REPORTS. [In these days of " Leaves from the Diary of a Doctor,” “Adventures of a Man of Science,” and so forth, when all kinds of life are searched into for the interesting stories which they may afford, it is not fitting that the great storehouse of such things which our law reports afford should be left unexplored. We propose, therefore, to publish a series of stories actually drawn from the case-books, and which tell of life under a great diversity of different circumstances. All sorts and conditions of men will figure in them-literally from princes to beggars, such is the beautiful variety of the law. The true reference to the report will in each case be given ; but, if any facts or details appear which are not in the report, the reader will of course assume that the editor- as in the case of “ Esmond"> and “ John Inglesant” and similar veracious bistories-is in possession of authentic family papers and historical archives, from which deficiencies have been supplied.
Esop of old concluded each of his fables with the appropriate moral to be derived from his narrative. We shall conclude each of our stories with the legal proposition established by the case in question."
I.-THE STORY OF THE BEAUTIFUL GIRL WHO WAS HATED BY HER
(From Dey v. Clarke, 3 Addams, 79.) Charlotte Mary Stott was a beautiful baby from her birth, und she grew up to be one of the most engaging and interesting children ever seen. Phoebe Wall, her nurse, who had many another child under her care in after years, always alluded to this one as her favourite ; and the common opinion agreed with her. There is no doubt about this ; little Charlotte was equally lovely in person and amiable in disposition, and in the Berkshire country mansion where she resided she was beloved by the whole household—with one exception. This exception was her father, Ely Stott; he hated her.
He was a doctor of medicine, an eminent electrician, and of the Calvinist persuasion. Shortly after Charlotte's birth he became a widower. He was of some standing in his profession, and great men came to him to be his patients. His opinion upon scientific subjects at least was certainly considered valuable. His opinion of Charlotte was unequivocal; he thought her repulsive and abominable in every way. He was a most unnatural parent.
When she was four years of age her friends prevailed upon him to send her away to school. Mistress Gwillim, who kept the school, was prepared for an atrocious little wretch ; but she found her in all respects one of the most lovely and endearing little children imaginable---pretty to look at, with the sweetest of tempers and the best of manners. The father came to see the school one day, and the schoolmistress took Charlotte to him and put her hand in his, saying, “ My dear, this is your papa.” But he thrust the hand away from him in a furious temper, and, screaming out “ Ma'am I must be going by the coach,” departed hastily. Soon after this -when the child was between eight and nine years of age-she was taken away from this school, and came to her father's town house in Bishops. gate-street. Mistress Gwillim was very sorry to lose her, but her parent loathed her more than ever with an unspeakable loathing.
Nobody knew why, though everybody knew the fact. The child did everything to turn him to another frame of mind; she conducted herself with great respect and submission, and did all in her power to soothe and soften him. But it was all of no avail ; all his acquaintances could testify to the invariable horror which her presence always aroused in him. He could not even bear to have her sitting in the same room with him for a little while, and if she so much as passed the window when he was talking to a friend the whole form of his countenance was changed and his demeanour and language became most violent.
After a time she was sent to school again the school of Mistress Rivers, at Hackney, where she speedily became a favourite. Soon, however, after her arrival her father sent a birch-rod to the mistress, begging that she would use it upon her often. The mistress replied that the custom of the school did not admit of this, and she locked it up in a drawer. Then the father said that he would come and use it himself, and though, of course, this was not possible, yet when he did come the girl often had blows from him of one sort or another.
She was subsequently removed to the school of Mistress English, at Hampstead, when again her delightful manners won her many friends. She got on excellently with the mistresses, though the latter were greatly harassed by perpetually receiving letters from her father home abusing her. She did, however, get into trouble one day for saying some little thing which she ought not to have said, and her father, hearing of it, wrote to say that it was a case for expulsion, such a wicked character being hopelessly irreclaimable. When soon afterwards Mistress English was obliged to get rid of the child, owing to the harm which the discipline of the school was suffering from the father's impertinent interference and frequent disturbing visits, he spread it abroad among his friends and family that Charlotte had been expelled for language and practices of the grossest impropriety.
What she suffered when she returned home again is a story beyond all words. She was treated worse than the servants : she had to do the hardest of the household work, and whereas the scullery-maid was allowed warm water, she had to do with cold. Bat this was the least of all her troubles. He used to make her sit in his study and write out "an account of her secret thoughts." Whatever she wrote he said it was a lie, and laid his horsewhip across her shoulders. The threats that he had made against her when she was at the school of Mistress Rivers he carried out now that she was at home.
At last his good neighbours, Sir Thomas and Lady Barnard, resolved to put an end to this state of things, which had become a scandal in those quarters, and which they feared might lead to murder. So they procured her a place as parlour-boarder at Miss Brent's school in Westminster Old Palace-yard.
There she remained as long as suited the convenience of Miss Brent, who subsequently passed her on to another school, kept by Miss Atkinson. This last lady took a great fancy to her, and in her house she was very happy--though her father meanwhile was always writing and saying whatever he could to harm her. He would talk about her to his patients, one of whom was the Bishop of Durham, and describe her as abnormally immoral.
Somehow Charlotte's character survived all these calumnies--possibly because her good friends Sir Thomas and Lady Barnard explained the true circumstances. Bc that as it may, on the termination of her residence with Miss Atkinson, she obtained a post as governess in the family of a certain Mr. and Mrs. Abbott, where she remained for five years and a half. At the end of that time the eldest son of the family, scarcely more than a schoolboy, fell desperately in love with his sisters' beautiful governess ; he followed her about with tender glances, and sat at her feet at school. room tea. Miss Stott endeavoured to discourage him, but without avail ; 80, to put an end to an uncomfortable situation, she resigned her place.
Mrs. Abbott never ceased to regret the treasure that she had lost, an remained her friend through life.
Miss Stott now took another similar post in the family of a Mr. and Mrs. Dew, and endeavoured once more to take an unassuming part in the background, for she never forgot her place as governess. Bat, although she was quiet in manner and simple in dress, and was very seldom seen, when it could be helped, without the precincts of the schoolroom, beauty like hers could not be hidden away. A son of the house of Dew soon fell a victim to the ravishing charms which had proved so disastrous in the case of young Abbott, and this time Charlotte found herself unable to resist an answering emotion. Governess though she was, the Dew parents were so completely fascinated by her perfections that they facilitated the match, and their son and Charlotte were soon betrothed.
Charlotte, alas! could bring no dowry with her; her father, she explained, would probably, from a sense of duty, leave her a trifle by his will, but the bulk of his money he would assuredly leave elsewhere. The Dew family, however, were contented to accept her penniless, and the wedding-day was fixed.
One day, while she was still with the Dews, a Nonconformist minister of the name of Wilson called, and asked to see Miss Stott. He explained to Mrs. Dew that he had heard what a very wicked character her governess was. “What do you mean?" said Mrs. Dew. “ You had better not let my son hear you say that, or he would kick you down the doorsteps. From whom have you heard anything against her.” “From Mr. Ely Stott, her father,” replied the other. “ He is one of my congregation. He came to ask me to reprove his boot boy for not blacking his boots properly, and then he suddenly burst out into invective against his daughter, hoping that I would come and remonstrate with her. I gathered from him that she was one of the worst of the women of the town." This was the sort of character her father was always giving her. This was what he had repeated to the Bishop of Durhain. This was what he had told his friend in the City-Mr. Daniel Goff.
The Dews, however, laughed all insinuations against their favourite to scorn. The wedding duly took place, and a very pretty wedding it was.
Soon afterwards-it was on the 21st Nov. in the year 1821-Ely Stott died, and when his will was read it proved to be as Charlotte had foretold. The bulk of his fortune was bequeathed to her two young cousins, whose name was Clarke ; she herself had nothing but a trifle. “ It is no disappointment to me,” she said, “ I never expected more.” “ Nor I," said her husband ; “it is a shameful thing, but it can't be helped, a man can do what he likes with his own."
A few days later he met a friend, a young solicitor, to whom he shortly told the story of his father-in-law's will. The solicitor said nothing for a while, but thought in silence. Then he said suddenly, “ Put the case in my hands. I can upset that will.”
The Dews instructed him accordingly, and, after all the facts which we have set forth above had been proved, the Court pronounced that the will was void, so that Charlotte and her husband succeeded to the property and lived happily ever afterwards.
Legal Proposition.--A will is void where the testator was not at the time of making it " of sound disposing mind." When a man has a mental delusion that his daughter is profligate and very wicked, whereas she is in fact quite the contrary, that is sufficient to upset--not necessarily any will which he makes--but a will which is ino cious to her. Such a delusion is considered, FOR THE PURPOSE OF UPSETTING SUCH A WILL, as constituting partial insanity. Note, therefore, that, to support a will, what you have to prove is not that the testator was "sane" within the ordinary moaning attached by the law to "sanity,” but that he was “ of sound disposing mind” within the above-stated principle. For the distinction between “sound disposing mind” and ordinary “sanity," cf. Banks v. Goodfellow (22 L. T. Rep. 813) and Smee v. Smee (15 P. Div. 84); and ride Jarman on Wills, p. 38.
Conflict of Lars. By A. V. Dicey, Q.C., B.C.L., of the Inner
Temple, Barrister-at-Law, &c., with Notes of American cases by JOHN BASSETT MOORE, Professor of International Law, Columbia University, New York. London : Stevens and Sons Limited, Sweet and Maxwell Limited ; and the Boston Book
Company Limited. This work is an application to the whole field of private International law of the method of treatment pursued by the author in his well-known treatise on the Law of Domicile. Mr. Dicey keeps fast hold of the principle that private International Law, if a discussion of it is to be of any value to English practitioners, must be treated as a branch of the Law of England. In the first place, he disposes of certain preliminary matters in a masterly introduction followed by chapters on the interpretation of terms, domicile, and British nationality. He then elaborately discusses, under the head of Jurisdiction, the jurisdiction both of the High Court and of Foreign Courts, embracing all questions of administration, succession, and the enforcement of foreign judgments. In a third part of his treatise he deals with the choice of law, while a number of subjects for which it was perhaps difficult to find a place in the