Page images
[blocks in formation]

Four lines or thirty words............ 39. 6d. | Every additional ten words

Advertisements spocially ordered for the first page are charged one-fourth more
Chan the above scale.

Advertisements must reach the Office not later than five o'clock on Thursday afternoon.



Breach of promise to marry at time

certain - Renunciation before time


Married woman-Loan by, during life

of husband-IO U to wife after hus-
band's death


Practice Interrogatories when money
has been paid into court .........


Tie notion that less respect is paid to judges now than was the case formerly is one which may be easily fostered, and we looked with some alarm upon a statement made by Mr. SPOFFORTI in bis evidence before the Committee on the Corrupt Practices Prerentious Acts, that the local trial of election petitions is calculated to diminish the dignity of the Bench. This suggestion we are glad to perceive has been utterly scouted by Baron BRAMWELL, who says that on such occasions the judges are received in precisely the same manner as at the assizes, and are treated uniformly with the same respect. Were the fact otherwise it would be a strong argument in favour of causing all petitions to be tried in London.


tration .....



British North America Act 130 Vict. c. 3)
-Local work or undertaking-Pro-

vincial Legislature-Taxation ............ 274
Joint-stock company-Mortgage-Pro.
perty-Futare calls

Criminal jurisdiction of colonial courts
-Vanslaughter on the high seas--
Sentence of penal servitude.

Trustee-Equitable mortgage-Breach
of trust-Certificates of shares-Regis.

Merchant Shipping Act 1854-Measure-

ment of ship-Tonnage-"Spar deck" 287
Er parte WARREX; Re JOYCE-
Liquidation-Receiver-Tuking posses.

sion of debtor's business-Injunction
Against mortgagee

Debtor's summons-Service--Company

Sharebolder's registered address
Substituted service

Ex pert. HARE ; Re ENGLAND
Bankruptcy-Proof of debt-Proof on

behalf of deceased creditor's estateReceiver appointed by Court ol Chancery

Ex part, GIBBS; Re WEBB-
Liquidation - Practice - Defect in
debtor's statement......

Dernurrer - Annexation of province
Foreign creditor ........

Trustees' Relief Act (22 & 23 Vict. c. 33).

8.1-Opinion, advice, or direction of
the court

Company Winding-up - English and

Indian shareholders-Contribution-

Ev parte GOVER-
Company - Patent - Agreement by
Vendee to form a company.....

Will-Tenant for life and remaindermen
--Conversion, power to postpone ...... 305

Contract for sale of goods-Variation

in meie of performance-Ratification
of variation


Landlord and tenant-Date of com. mencement of tenancy where no date expressed in agrecment creating itXotice to quit



Topics of the Week
The Rating Act of Last Session

The Labour Laws
County Courts Amendment Bill
The Control exercised by the Superior

Courts over the Decisions of Domestic

House of Lords

House of Commons
SOLICITORS' JOURNAL (Edited by a Solici-

Topics of the Week

Court of Queen's Bench,

Court of Common Pleas

Court of Exchequer...
Court of Divorce
Heirs-at-Law and Next of Kin
Unclaimed Stock and Dividends in the
Bank of England

Appointments under the Joint-Stock
Winding-up Acts

9 Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35

9 Reports of Sales



Ontario, Canada.......
Merthyr County Court

Reading County Court

Bankruptcy Reform

Leeds County Court

12 Walsall County Court



Incorporated Law Society

The Legal Practitioners' Society

10 Law Students' Debating Society

10 Bradford Law Students' Society

16 Bristol Articled Clerks' Debating Society. 16 Leicester Law Students' Society

10 Portamouth Law Students' Society

16 Articled Clerks' Society






A most pernicious practice is unfortunately largely on the increase amongst us, as evidenced by the columns of the daily press; we mean the practice of attacking judges in their judicial character. Whilst on the one hand we would be far from desiring to see any conduct on the part of the press which showed a disposition to sacrifice independence of spirit to a mean subserviency to office, we must not forget on the other hand, that something is due to the difficulties of a judge's position, and that reckless criticism may produce the most lamentable results. There would be no difficulty in painting in the blackest colours what must be the consequences of this practice. They are so obvious that they will occur to anyone who considers how necessary it is that the purity of our legal administration should be above suspicion. This phenomenon, apparently, is not peculiar to England. The legal press of America, or at least some sections of it, are crying out under an infliction of the same evil; and the Albany Law Journal is constrained to say, in reference to some flimsy charges made against the CHIEF JUDGE of the Court of APPEAL, that “it is a humiliating sight when the Chief Judge of the highest court of this State is compelled, by the force of public sentiment, to make an express der.ial of such baseless charges.” Whatever may be the causes of the increase of this mischievous practice, it is to be hoped that public feeling may never be led astray by the operation of these causes, and that the criticism in at least some daily papers may be of a more healthy character.

......... 10

**.... 15

It seems strange that the question, whether a gift to a man in which there is a condition in restraint of a second marriage. is void or not, should not have been long ago decided. The question came recently before Vice-Chancellor Hall (W. N. April 17), who decided against the validity of the restraint, but, as it seems to us, without authority. FRANCES Jackson, by her will, after bequeathing a legacy to her niece, E. A., the wife of R. N. JACKSON, directed her trustees to pay the remaining income of her property to the said R. N. Jackson and his wife, for their joint lives, and to the survivor for life. The testatrix declared that if the hus. band should survive the wife and marry again, the trustees were to hold the property upon other trusts thereinafter mentioned. The husband did marry again, and claimed, notwithstanding, to enjoy the income of the property; and the Vice-CHANCELLOR heid that, having regard to the authorities, his interest had not ceased. We are unable to find any authority for the Vice-CHANCELLOR'S statement. In the notes to Scolt v. Tyler', in 2 White and Tudor's Lead. Cas. 216, it is stated that the validity of a condition defeating a gift to a man on his second marriage does not appear to have been decided. But the case there referred to (Evans v. Rosser, 2 H. & M. 190) is adverse to the present decision of the VICE-CHANCELLOR. The bequest was to a testator's son-in-law,

during the term of his natural life or marriage again," with a

The Law and the Lawyers.

The death of Baron Pigott is an event which has excited genuine regret, for his judicial career, if not one of the most brilliant, was marked by strict integrity and uniform courtesy to all who were brought before him. The vacancy caused by his death ought to be filled up by the appointment of the very best man

VOL LIX.-NO. 1674.

gift over, "after the decease or marriage” of the son-in-law. Lord HATIERLEY, then Vice-Chancellor, held the gift to have been forfeited on the son-in-law's marriage, for the reason, a very artificial one as we think, that the gift was one for life or until marriage (the VICE-CHANCELLOR bad to insert the word “until” to support this construction) and not a condition in defeasance of a prior gift. The validity of a restraint on a widow's marriage, which for a long time was supposed to extend only to a testator's widow, was extended by Vice-Chancellor PAGE Wood in Newton v. Marsden (2 J. & H. 356) to all widows. A testator was naturally supposed to have an interest in his wife's widowhood, especially if there were children ; and in Newton v. Marsden the testator had put himself in loco parentis to the children of the marriage. But we cannot see why a woman should not have the same interest in her husband's remaining unmarried, in view of the possible unkindness of a stepmother, and why, on the analogy of Newton v. Marsden, the rule should not be extended to any widower. In the early case of Lowe v. Peers (4 Burr. 2225), where a man entered into a bond not to marry anyone else except the obligee, and the bond was held void as against marriage generally, Mr. Justice Aston, not confining his words to the case of women, remarked that there is a difference between a first and second marriage. “The restraint of a first marriage is contrary to the general policy of the law, the public good and the interests of society; but the frequent custonis of copyholds intimate that the restraint of a second is not so." Moreover, the freebench of a widower in gavelkind lands ceases on his second marriage. We do not think, therefore, that either authority or analogy supports the decision of the VICE-CHANCELLOR.

was domiciled in Holland, but also occupied furnished lodgings in: Kentish Town, and appeared to have been in the habit of going from London to Amsterdam and back as circumstances required. The object of his taking the lodging in Kentish Towa seemed to be that he might more effectually prosecute his claim, which had been referred to one of the masters. In Feb. 1875, upon his failure to attend one of the appointments in the reference (he being in fact absent from England), the master ordered him to give security for costs. Against this order he did not appeal, nor did he give or offer to give security, but returning soon afterwards to England, claimed to have it rescinded on the ground of such return. The Master refused to rescind, and Mr. Justice Lush refused to overrule the master. And now the Court (Lord Chief Justice COLERIDGE, and Justices BRETT, DENMAN, and HONYMAN) has refused to overrule Mr. Justice Lush. The cases upon security for costs which may be found collected in Chitt. Arch. Pr. vol. 2 p. 1415 (12th edit. A.D. 1866) were fully gone into, and were found to be somewhat conflicting, the strongest on the side of the plaintiff being Tambisco v. Pacifico (21 L. J. 270, Ex.), and the strongest on the side of the defendant being Oliva v. Johnson (5 B. & Ald. 908). But the absence of an exact precedent was fatal to the plaintiff, the peculiarity of whose case was that he had neither obeyed, nor appealed against the original order, but was seeking to have it rescinded on the ground of a fresh state of circumstances having arisen since it was made. If he had appealed against the original order, he might perhaps have been assisted by the case of Wells v. Baston (2 Dowl. 160), in which Mr. Justice PATTESON drew a distinction, in the case of a temporary absence, between a residence abroad when the action is commenced, and a going abroad while it is pending. In the former case the plaintiff, it was said, ought to find security, but not in the latter. “But this distinction” it is stated in Ch. Arch Pr. (at p. 1415 n.) “is not observed in the Court of Common Pleas : See Ford v. Boucher 1 Hodg. 58."


Cock fighting is, no doubt, a serious, and has long been a punishable offence. And there may be good reasons for maintaining that the penalty not “ exceeding 51.,” which is at present imposed by 12 & 13 Vict. c. 92, s. 3, upon every person who shall in any manner encourage, aid, or assist at the fighting of any bull, bear, badger, dog, cock, or other animal” is a penalty not sufficiently high. But we must earnestly deprecate any such ex post facto legislation as that suggested by Mr. MACDONALD, who proposes to move an address to the Crown that the names of certain persons charged with assisting at a recent cock fight should, in the event of a conviction being obtained, be printed and published by the Government. We doubt even whether this peculiar form of punishment, which at present is, we believe, to be found in Adulteration Acts only, is appropriate to the offence, but it is obvious that no precedent could be worse than to apply it merely upon an address by the House of Commons to the Crown. We presume that Mr. MACDONALD is seeking to enforce the publication of the names of the offenders in consequence of its having been alleged that fictitious names were given to the police. If this be so, and if the practice be sufficiently common, the proper remedy would be to bring in a Bill imposing a special penalty for the giving of fictitious names, after the analogy of the Licensing Acts. See 35 & 36 Vict. c. 94, s. 25, and 37 & 38 Vict. c. 49, s. 17, by which latter section “ any constable may demand the name and address” of persons found on premises where liquor is sold without licence; and “any person required by a constable" under the section to give his name and address . . who gives false information with respect to such name and address is liable to a penalty of 51. The conviction that Dr. KENEALY is a coward is rapidly gaining ground. The following extracts from two of his speeches is strong evidence on the point, and ought not to be lost. They are supplied by the Glasgow News: City Hall, Glasgow, April 13, House of Commons, April 16, 1875.

1875. 'Now, I have studied the con- I do not profess to be stitutional law of England, and I very profound student in consti. think I have made myself master tutional law, or in the usages of of it

- (hear, hear) - and I am this House, but I have really going to Parliament on Thurs. heard no language cited by the day in order to hear from the right hon. gentleman from the Chancery-lane attorney's clerk petition which comes properly his notions of the constitutional under the designation of slan. law."


The Judges of the United States, if we may make an inference from the remarks of some of the American legal papers, are subjected equally with the Judges of this country to the ill-considered attacks of newspapers. The Albany Law Journal, in particular, published a short while ago an article strongly condemning the practice. We quite agree with the spirit in which that article is written. It appears that certain New York and New England journals have been assailing the character of the members of the Court of Appeals, and, amongst others, that of Chief Judge Church. We are not told what are the grounds of these attacks, but a high tribute is paid to the whole Court by the journal to which we have alluded, and the attack itself is characterised as one scarcely paralleled for its want of fairness, courtesy, and consideration. In vindication of the judges assailed, it is stated that there never has been "a more able, industrious, appellate court” in the State than this whose chief judge has been constrained " by the force of public sentiment to make an express denial of such baseless charges” as were scattered broadcast by newspapers on the most flimsy excuses. This state of things bears a close resemblance to what has come to pass in England, though our judges have not been, and we trust never will be, put to the indignity of justifying conduct which stood in no need of justification.




It has been frequently held that a plaintiff domiciled abroad will not be compelled to give security for costs whilst he is in this country, and in Ciragno v. Hassan (6_Taunt. 20) where the plaintiff was a Greek sailor on board a Turkish vessel, the Court, in refusing to compel him to give security for costs, observed “that security was never exacted on the ground that the plaintiff was about to go abroad, but that it was necessary that he should actually have left the country." Whether a plaintiff

, who has bad an order for security made against him on the ground of his absence from England, is entitled as a matter of law to have such an order rescinded upon and on the ground of his return, is a point which was, we believe, quite without authority until Friday week last, when the Court of Common Pleas, in the case of Westenberg v. Mortimore, decided it against the plaintiff. The facts were these: The plaintiff, whose claim amounted to about 20001., had brought his action so far back as 1872. He was a Dutchman, and

An important decision upon a question touching the liability of railway companies for damage done to goods lying at a railway station after the termination of the journey, was given in the Queen's Bench on Saturday last in the case of Mitchell v. The Lancashire and Yorkshire Railway Company: Mitchell is a manufact urer of felt. There was consigned to him a quantity of tow which was sent to the defendants to be carried to a station on the defendants' line, and to be delivered there to the plaintiff. The tow arrived at the station safely. On the following day an advice note was sent to the plaintiff, stating that the goods had reached the station, that the defendants waited instructions, and that meantime they held the goods not as common carriers, but as warehousemen, at the owner's sole risk, and subject to warehouse charges. The plaintiff took away a small portion of the tow, but as the quality did not please him he would not accept the rest. Thereupon the defendants stacked the remainder on their premises in the open air, and covered it with a tarpaulin. The tow was damaged by wet and dirt. The plaintiffs having brought an action to recover the amount of damage, obtained a verdict which has been upheld by the Court of Queen's Bench, although it was contended for the defendants that the company was protected from liability for the loss by the terms of the advice note abore referred to, inasmuch as it gave to the plaintiff notice that the goods were held at his “sole risk.” It will be noticed this contention assumes that the company had occupied a threefold relation to the goods. In the first place they had been common carriers, and therefore insurers of the goods; in the second place they were bailees of the goods, with the ordinary duties of bailees; and in the third place it was assumed that they were bailees without responsibility by reason of the advice sent to the plaintiff. The real question before the court was the effect of the note of advice upon the defendants' liability. Did it

[ocr errors]

free the defendants, from all responsibility ? To hold that it did do so would be practically giving to all railway companies an easy method of aroiding all risk under similar circumstances. But clearly such a contention is not only inequitable, but in the strictest sense of the term illegal. There are well defined duties attaching to all contractual relations. When a man is in the position of a common carrier there are incumbent upon him all the duties recognised by the law as attaching to that position; when again a man, is a warehouseman, ex vi termini he is clothed with the obligations recognised by law as belonging to that position, and so through all the gradations of contractual relations. If, then, one in either of these positions should limit his responsibility by any formal notice, he must make his meaning very clearly understood. Mr. Justice BLACKBURN says in the present case “The whole of the advice note must be looked at in order to determine its meaning, and that according to its terms, appears to be that the company intended to hold the goods as warehousemen, and subject to warehouse charges. These terms must be construed reasonably.” It certainly would not be considered a reasonable construction to suppose that the company were to receive the benefit of all the charges, and incur no liability in respect of the goods.

ment delivered by Mr. Justice WILLES, in Great Western Railway Company v. Talley (L. Rep. 6 C. P. 44), in which case iû was held that when a passenger's luggage is at his own request placed by a railway company's servants in the carriage in which he is travelling, the company's contract to carry it safely is subject to an implied condition that the passenger takes ordinary care of it, and if his negligence causes its loss, the company are not responsible. The old law as to stage coaches, as laid down in Robinson v. Dunmore (2 B. & P. 419), that "if a man travel in a stage coach and take his portmanteau with him, though he has his eye upon the portmanteau, yet the carrier will be liable if the portmanteau be lost," has been considered by eminent authorities to be equally applicable to railway carriages, but it has been questioned by equally high authority whether the liability in respect of luggage is as stringent as that in respect of goods generally, and “ whether there be any larger obligation in respect of goods carried with passengers than in respect of the passengers themselves to whom they are accessory.” See per Mr. Justice Willes in Talley's case (ubi sup.) The naked point, therefore, of insurers or no insurers has long been and still is an open one, except in the case where the passenger chooses to take his luggage in the carriage with him, an act which, upon the authority of Talley's case, appears to relieve the company from their primâ facie liabilities.


A NOVEL point in bankruptcy law arose in the case of Ex parte King, Re Palethorpe, which came before the Chief Judge on Monday last. PALETHORPE, who was indebted to King to the amount of 6311., assigned to him in Oct. 1868 a policy of insurance for 12001., as security for the amount due, and the premiums for keeping up the policy. The debtor filed a petition for liquidation in 1874. King presented a proof for 1209. He stated that he held the policy in question, and valued it at 2001., a valuation which appeared satisfactory to the trustee. The proof was admitted. The debtor died in 1874, and the amount of the policy was subsequently paid to King. Upon payment of the policy the trustee claimed so much of the 12001. as exceeded King's previous valuation of the policy. The Liverpool County Court Judge decided in favour of the trustee's claim, and his decision has now been upheld on appeal. It will be seen that the proceeds of the policy were not enough to satisfy the whole amount due to King. A very little consideration will suffice to show that the decision is right on principle. The secured creditor elected to value his security at a certain sum, and it would be highly improper that he should be allowed to have any further advantages over other creditors. The maxim that “no one shall blow hot and cold" strictly applies to his case. He ought not to be allowed on finding that the security was realised to the full amount, to turn round and say: “I made a mistake, and shall now retain the proceeds of the security, although I gave up my right to claim more than 2001.

But the decision is also right in law. If we turn to the Bankruptcy Rules 1870, rr. 99 and 100, we shall find it laid down: That any secured creditor who has stated in his proof the particulars of his security and the value at which he assesses the same, shall be deemed to be a creditor only in respect of the balance due to him after deducting the assessed value of the security, and that any secured creditor so proving shall be bound to pay over to the trustee the amount which his security shall produce beyond the amount of such assessed value. This really puts the question beyond doubt. With all deference to the opinion of the Chief Judge, we are far from thinking the question a difficult one. To argue that the creditor had a locus penitentiæ might be ingenious, but certainly the argument could not be maintained with any chance of success.

upon it."

[ocr errors]

The question of trader or non-trader has not ceased to be of importance in bankruptcy law, because the insolvent laws have been merged therein. The very commencement of proceedings calls attention to this fact. Thus one of the acts of bankruptcy is that when “ the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons, requiring him to pay a sum due of an amount not less than £50, the debtor being a trader, has, for the space of seven days, or not being a trader, has, for the space of three weeks succeeding the service of such summons, neglected to pay such sum, or to secure or compound for the same.” (32 & 33 Vict. c. 71, s. 6). In Re Schomberg (L. Rep. 10 Ch. A. 172; 23 W.R. 204) the Lords Justices held that the section meant that the trader must be a trader at the date of the summons. Still a trader may be retiring, or the person who traded may

have retired from the business. When does such a person cease to be a trader. To use the illustration of Horace : A grain is taken away from a heap of corn; it still continues a heap. Another is taken, and another, and at some time the heap ceases to exist. A difficulty of this kind was, in Chidley v. Chidley, recently presented to Lord Justice Mellisu for decision, his learned brother having been detained by illness from assisting in the solution or decision of the logical sorites. Lord Justice MELLISh remarked that it rested with the debtor to rebut the presumption of continuance: (Heanny v. Boul, 1 Rose, 356, 3 Camp. 233.) In delivering his judgment he said that the case presented no difficulty to his mind. “A trader does not cease to be such because he stops active business for temporary purposes. It might be that trade was bad, that he wanted money, that there was a strike among the workmen. The stoppage must be with an intention to abandon the business altogether. After Oct. 21th no more corn was purchased. Sept. 7th was the last day for selling. On Dec. 3rd the debtor was still in possession of the distillery. I will assume that no more servants were retained than were necessary to keep the distillery in order. He might be inconvenienced by the want of money, but his efforts to obtain it were evidence of his intention to start again. It is absurd to say that he had ceased business. Otherwise a stoppage in business would make any insolvent a non-trader.” The appeal was dismissed with costs. We do not suppose that this case or Re Schomberg throws any doubt upon the well established doctrine that in respect of debts contracted during the trading, a man who has retired from business may be made a bankrupt: (E. P. Dewdney, 15 Ves. 495; Willoughby v. Thornton, 1 Selw. N. P. 175.) In Ex parte Griffiths, Re Mostyn (3 D. M. & G. 170), Lord Justice Bruce held tbat a trader, after becoming indebted, is not to be heard to say to his creditor that the trading has been left off, if a question arises whether the debtor can or cannot be made bankrupt, any more than to say that the merger of a simple contract in a bond, or a bond in a judgment, which for many cases extinguishes without satisfying the original debt, would prevent the creditor making his debtor bankrupt on the original debt if still unsatisfied. Trading within the bankruptcy law, it may also be remarked, does not depend upon the quantity of business done, but upon the intention. The general words of the Act of 1869 are : “ Persons who either for themselves or as agents or factors for others seek their living by buying and selling and selling or buying, and letting for hire goods or commodities, or by the workmanship or conversion of goods or commodities.


The vexed question of the degree of liability of railway companies in respect of passengers' luggage once more came before the Court of Exchequer, on Saturday week last, in the case of Harrison v. The Great Western Railway Company. The facts appear to have been as follows: The plaintiff was a passenger from Culham to Birmingham, and had seen his portmanteau duly labelled. Upon his arrival at Birmingham the portmanteau was not forthcoming, and although the plaintiff had allowed a minute or two to elapse before seeking it, the jury found that he had used all due despatch, and that the company had not allowed sufficient time to elapse before delivering the portmanteau to the wrong owner. It was strongly urged for the defendants, that their contract was not to deliver his luggage to the plaintiff himself, but only to carry it safely from platform to platform. But the Court (Chief Baron KELLY, and Barons CLEAsBy and AMPHLETT) decided for the company without hesitation, and looking to the label and the findings of the jury, we do not see how any other decision could have been arrived at. The peculiarly worded warning that passengers must see their luggage labelled or it will not be put into the train," must, we think, be construed with reference to the statutory duty of the company to carry, and to import in law, what it certainly does not import in logic, a warranty that if the laggage be labelled it will be put into the particular train for which the passenger takes his ticket. But when it is put into that train, there seems to be considerable doubt whether the company are insurers or not. All the cases upon the point previous to 1871 will be found stated in the considered judg.

THE RATING ACT OF LAST SESSION. We propose to consider in detail a few of the provisions of the present statute. It seems incredible that hitherto mines, with the exception of coal mines, have not been assessed to the poor rate. The Act of Elizabeth mentions coal mines, and no others, and the Judges decided that it was not applicable to other mines, and are not specified. It may be said that our criticisms are minute and pedantic. But if grammatical and logical precision are in any case necessary, they are pre-eminently so in a statute, the terms of which ought to be susceptible of only one interpretation, which should lie on the face of them. For it is important to remember that we have to provide not only for the difficulty of a reasonable construction of words, but also for the case of interested persons seeking to twist words for their own benefit.


strangely enough the exemption has continued to the Act of last session. After including under the operation of the Poor Rate Acts all other mines, as well as coal mines, we cannot understand why the important provisions of sect. 7 shonld only be made applicable to certain specified mines, viz., tin, lead, and copper. The rules applicable to the rating of these particular mines, and the definitions of terms used in connection therewith, are given with commendable precision. But the net result is that three systems will be at work. Coal mines will be assessed as heretofore; tin, lead, and copper, as directed in the 7th section of this Act, whilst all other kinds are left out in the cold to shift for themselves.

In sect. 8 there is a very remarkable phrase, the construction of which, we expect, will involve difficulty and litigation, although, strictly interpreted, there can be little doubt of its meaning. The section provides that, where a lessee, licensee, or grantee of a mine becomes chargeable under this Act with a rate, from which heretofore he has been exempt, he may, “unless he has specifically contracted to pay such rate in the event of the abolition of the said exemption,” deduct one half of such a rate. Now, it is not uncommon, we believe, for the lessee of a mine to covenant, in very inclusive terms, to pay all rates and taxes, parliamentary and parochial, payable at the date of his lease, or made so thereafter. And the tendency of the courts has undoubtedly been to construe such a covenant strictly against the tenant. But the words “ specifically” and “such rate,” seem to exclude the application of any covenant which was not obviously made in expectation of this particular change in the law. And this presumption is strengthened by the fact that words, almost identical, but in reference to other subjects, are found in the 6th section. We have little 'doubt, therefore, that the words we have quoted would be stretched to their full meaning. In this section, our legislators again indulge in the habit so congenial to them of making identical propositions. The lessee, licensee, or grantee “may deduct from any rent, royalty, or dues payable by him one half of any such rate paid by him;” to this is added “ Provided that he shall not deduct any sum exceeding what one half of the rate in the pound of such poor or other local rate would amount to, if calculated upon the rent, royalty, or dues, so payable by him.” On what else than the “rent royalty, or dues” could the poor or any other rate be assessed? And why tell us in one sentence that one half may be deducted, and again in involved and inelegant phrase inform us that not more than half is to be deducted ? 'The 11th section affords us another example of the clumsiness and obscurity which, unhappily, we now expect as an invariable accompaniment of every Act of Parliament. It relates to the time at which the Act is to come into operation, and we are informed that “this Act for the purpose of enabling any hereditament to be included in or omitted from, or valued for the purposes of a valuation list, or a supplemental or provisional valuation list, which wili come into force after the 6th April 1875, shall come into operation on the passing thereof;” but for other purposes it is to come into force on the 6th April next, “and the expression Commencement of this Act' shall be construed accordingly.” Are we to infer that some such valuation will actually come into force at the above date, or that the contingency is provided for of some list or other coming into force between the passing of the Act and the 6th April ? And if the acceleration of the period at which the statute is to apply is only to take place for the purpose of being embodied in some list to be made in the interim, why make the Act operative at a time which may possibly precede by several months the making of such list? The date of the Act is 7th Aug. 1874; such list might be made at Christmas 1874, or Lady-day 1875. What is to be done in the interval? And if some definite list is referred to, why use the indefinite article, instead of speaking of the list which is to come into force ?

Sect. 12 is an admirable instance of the lucid arrangement and the great facility of reference to former enactments which is so distinguishing a feature of our statute book. It extends “The provisions of the Sanitary Acts, as defined by the Public Health Act 1872, with respect to any special assessment of woodlands, to land used for a plantation or a wood, or for the growth of saleable underwood," &c. At first, one would be inclined to construe this as meaning that the provisions of the Sanitary Acts were defined by the Act of 1872; but on turning to that Act no reference to any such special assessment is to be found, and on examining the “ Definitions " at the end of the Act, we discover that it is the Sanitary Acts themselves which are "defined," definition, in the accurate language of our lawmakers being equivalent to simple enumeration. And to our dismay we learn that in order to interpret a short section of six lines in a statute which concerns rating, we must refer to about thirty statutes on all manner of subjects from Local Government to Bakehouses. Another example of the same kind occurs in sect. 15. "The term gross value has the same meaning as gross estimated rental in the Union Assessment Committee Act 1862” (25 & 26 Vict. c. 103, s. 15). We turn to the place quoted, and find indeed a definition of the term in question, but it is qualified by a proviso which refers us again to the first section of 6 & 7 Will. 4, c. 96, which defines the net annual value of the hereditaments to be rated, and itself contains an exception in favour of certain principles which

THE LABOUR LAWS. The deputation from the trades unionists of the kingdom, which waited upon the Home SECRETARY on Tuesday last, brought forward a variety of important questions touching the relations of the Government to the labouring classes of the country. The Home SECRETARY was asked to take certain steps with regard to the Criminal Law Amendment Act 1871, the Masters' and Servants' Act 1367, and the Law of Conspiracy, all of which more or less directly affect the working classes of the community. The result of the deputation remains to be seen. The HOME SECRETARY could do no more than assure the members that the subject of these laws will surely occupy the attention of Parliament during the present session. Under these circumstances, it will not be iimiss to consider briefly the present state of these laws, with the amendments suggested by the representatives of the classes which are most interested in their administration. As might be expected, the questions involved have given rise to much hot discussion and angry feeling from time to time. Our remarks can provoke neither the one nor the other, as they will be directed to no other end than simply to bring clearly forward the purely legal aspects of the questions at issue.

The statute 24 & 25 Vict. c. 100, which consolidated the law relating to offences against the person, provides for cases of murder, manslaughter, assault and battery, and the like, false imprison. ment, abduction, rape, and the like; and sodomy. The statute 24 & 25 Vict. c. 96, consolidates the law relating to the malicious injury to property. The latter Act provides for charges of setting fire to various kinds of property, destroying or damaging a house with explosive substances, riotously demolishing any building, or injuring the same, destroying goods in process of manufacture, or damaging trees, and offences of a similar character.' Both these laws are of universal application. What we mean by this is that they do not in any way mark off a particular class for special protection. A man who commits any of the acts mentioned is amenable to the punishment provided, with some trifling exceptions. The Judge has only to look to the nature of the offence, and not to the relation of the parties. We shall now be enabled to understand the position taken up by the trade unionists. In 1871 was passed an Act to amend the criminal law relating to violence, threats, and molestation (34 & 35 Vict. c. 32). The peculiarity of this Act is not so much that it introduces new offences, as that it makes the relation to which we have alluded of the essence of an offence under this Act. The objections of the trades unionists to this statute may be summed up in a few words. The Amendment Act presupposed criminal intentions on the part of trade unionists generally, thereby showing an imperfect knowledge of the aims, objects, and workings of those societies. There was nothing compulsory in the unions, and nothing in their working or object necessitated this change in the law. They did not try to interfere with the free competition of the individual in the exercise of his craft, but they claimed the right of working for or refusing to work for an employer. The Masters and Servants Act 1867 (30 & 31 Vict. c. 141) is another of the Acts to which the deputation objected. The peculiar feature of this Act is that it gives to magistrates power to punish certain breaches of contract by imprisonment.

Sect. 14 enacts that where on the hearing of an information or complaint it appears that any “misconduct, misdemeanor, or illtreatment complained of has been of an aggravated character. . . . and that it has not arisen or been committed in the bona fide exercise of a legal right existing or bona fide and reasonably supposed to exist; and further that any, pecuniary compensation or other remedy by this Act provided will not meet the circumstances of the case," then the justices may commit the party complained against to the common gaol or house of correction, there to be imprisoned, with or with. out hard labout, for any term not exceeding three months. This section was the one gainst which the criticism of the deputation was directed ; and the Royal Commission in their recent report had remarked in reference to it that the complaint was not without foundation. The remaining subject discussed was the Law of Conspiracy, a subject into which we need not go at any greater length than a statement of the changes proposed will necessitate.

Å consideration of the whole subject must inevitably lead to the conclusion that the position taken up the the Legislature is in some particulars exceptional; indeed, the Royal Commissioners have acknowledged so much, at least with respect to sect. 14 of the Masters and Servants Act 1867. If the legislation has been exceptional, there can be no doubt that the circumstances that called forth the legislation were themselves exceptional, but whether they were such as justified the legislation is one we do not purpose considering. All we are concerned with is the fact


that certain modifications of the laws of labour will be introduced shortly; it will be for the Houses of Parliament to consider the question of expediency. The changes proposed to the HOME SECRETARY are merely indications of the feelings of the trade unionists of the country. Their aim is naturally to free themselves from all exceptional legislation. They have accordingly suggested that the Criminal Law Amendment Act 1871 shonld be repealed; that the Master and Serrants Act 1867, should be so amended as to remove from workmen the liability to imprisonment for breach of contract; and lastly that a Bill should be introduced into Parliament to define the Law of Conspiracy, and restrict its operation in the spirit of the Bill which passed the House of Commons two years ago. The importance of these questions cannot be denied. There has for a long time past been present in our midst a growing feeling of discontent with the operation of the labour laws in their present form. Those who are subjected to exceptional legislation will raise an outcry without any intervention of agitators. Besides, however much such legislation may be required by circumstances, it has so much the appearance of favouring one at the expense of another that too great caution cannot be exercised in its inception.

course, will have to prove his case in the ordinary way. The Bill also contains one important clause which confers upon the judge the power to call to his assistance in cases where technical knowledge may be useful or necessary, an assessor. This clause appears to us to be rather crudely drawn, inasmuch as the functions of such assessor are not defined. Is he to have an equal voice with the judge? Is be to adjudicate on law and on fact ? Or is the Judge at liberty to accept or reject his opinion ! If not, it may very well happen that the court would be equally divided, in which case no judgment could be given, which would entail considerable hardship on litigants. This clause seems to have been suggested by a desire to give effect to the cry which was very loud a year or two ago, but which has of late considerably subsided that relating to the establishment of tribunals of commerce. That there is no need for such tribunals, and that if established they would fail to give satisfaction, is an opinion to which we have over and over again given expression, and to which we still adhere. It would be a far more satisfactory measure to provide for the trial of such cases by a jury: Or if the litigants object to a trial by judge and jury, or by judge alone on the score that the question in dispute is surrounded with customs of trade, or such like, it is quite within their power to refer it to arbitrators whom they could select from men experienced in such special matters. We do not think this clause is one which will prove in any way beneficial. On the contrary it is calculated to produce mischief, though perhaps it might be useful if enacted in proving the inexpediency of creating any special tribunals for the disposal of commercial questions.



COUNTY COURTS AMENDMENT BILL. THE LORD CHANCELLOR has just introduced a Bill to amend the Acts relating to the County Courts, which calls for some comment.

Under the original jurisdiction of the County Court no provision was made whereby judgment could be entered for default of appearance; so that whether the defendant contested his liability or not, it was necessary for the plaintiff to prove his case to the satisfaction of the Judge. In this respect there was no analogy between the powers of the County Court and the Superior Courts. When the work in the County Court increased, and the jurisdiction came to be enlarged, the inconvenience of this was felt. By the 19 & 20 Vict. c. 108 provision was therefore made by which in any action for a debt or liquidated money demand exceeding 201. the plaintiff was enabled to take either of two courses—that is, either to proceed in the ordinary way and by the ordinary summons, or to issue a special summons, according to the schedule. Personal service of the summons in the latter case was necessary twelve days before the return day. If the defendant did not thereupon or within six clear days before such return dav give notice in writing to the registrar of his intention to defend, the plaintiff was at liberty on or within oue month after such return day to have judgment signed for the amount of his claim and custs without giving any proof. The order upon such judgment was for payment forthwith, or at such time or times as the plaintiff or.his attorney at the time of entering the plaint gave in writing. By the County Court Act 1867, this section, along with several others, was repealed, but a new provision was made, which on the face of it appears not to differ very materially from the repealed clause. On closer investigation, however, a considerable difference is seen. The repealed clause was only applicable to cases of a debt or liquidated money demand exceeding 201. The second sectionof the Act of 1867 does not apply to an ordinary debt or liquidated money demand, but only to cases where the money to be recovered is " the price or value of goods or chattels which, or some part of which, were sold and delivered to the defendant to be dealt with in the way of his trade, profession, or calling." Under the existing law, therefore, this special kind of procedure may not be used for the purpose of recovering a debt by way of money lent to, or payments made for the defendant; and it is questionable whether it is available for the recovery of the price of goods or chattels sold, say for household or domestic purpose, and not to be dealt with in the way of the defendant's trade or calling. Under the repealed clause the summons was to be granted on mere application. By the Act of 1867 it can only be issued upon an affidavit in form prescribed by the schedule to that Act. The original clause left the service of the summons in the bands of the officers of the court, with the provision only that it should be served personally. The substituted clause enacts that service may be effected by the plaintiff, his attorney, or by some clerk or servant in the permanent employ of either plaintiff or bis attorney. Proof of service must also be by affidavit, and there was this further difference that the judg. ment could be entered up under the old law only within one month after the return day of the summons. This is now extended to two months.

The present Bill proposes to amend this clause in two or three respects, the most important of which is that which is intended to make it applicable to cases of debts or liquidated money demands of 5l. and upwards in addition to cases where goods have been sold to the defendant to be dealt with in the way of his trade. Eight days from the service of the summons is to be allowed the defendant to give notice of his intention to defend, and in default of such notice judgment is to be entered after the expiration of a month, and before the end of two months after the return of the summons. Provision is also made whereby the Judge of the County Court may, where the defendant through mistake has omitted to give notice of defence in time, allow the defendant to appear on the merits, in which case the plaintiff, of


OVER THE DECISIONS OF DOMESTIC TRIBUNALS. A CASE which was very recently decided by the Court of Queen's Bench in Ireland is of considerable importance in the light it throws on the practice of the Superior Courts in controlling decisions of tribunals created by contending parties for the purpose of deciding a controversy between them. The case at the time caused a considerable amount of excitement among the sporting community on the other side of the channel, as the decision virtually placed the Justices of the Queen's Bench in the somewhat anomalous position of exercising the duties of stewards of the Galway races. The facts of the case, Newcomen v. Lynch (lr. R. 9 C. L. 1) were as follows :—The question came before the court on an interpleader issue, as to who was the owner of a sum of £250. At the Galway races held in 1872, it was announced that races were to be run under the "Irish National Hunt Steeplechase and Irish Turf Club Rules." These rules contain the following regulations : Rule 3. The decision of the stewards or whomsoever they may appoint is final in everything connected with steeplechasing, and there is no appeal whatever to a court of law. Rule 18 provides that in naming for a race in which horses of different ages are admitted the age of the horse named must be mentioned. Among the prizes announced to be run for was the Forster Street Plate of £250, in which weight was given for age; but for six years and aged the same weight, namely thirteen stone, was allowed. The defendant entered his horse named “The Lad,” as aged,” and he came in first and objection was taken to him by the plaintiff who was owner of the horse that came in second, on the ground that “ The Lad " was a wrong nomination, being six years old and nos aged. The stewards having satisfied themselves that “The Lad” was six years old, decided that he should get the stakes, upon the ground that as the weight required for a six year old horse was the same as for an aged horse, the misstatement as to age was not material. On the plaintiff's threatening an action against the stewards they retained the stakes, and an interpleader issue was ordered. The jury found “The Lad” was six years old and not aged, and that there was no imputation against the character of the defendant. On this the Chief Justice directed a verdict for the plaintiff. Against this verdict the defendant appealed, relying on the ground that the decision of the stewards was to be regarded as the decision of a domestic tribunal to wbom the parties had committed the final decision, and that the only ground on which their decision could be set aside was that the tribunal acted in a corrupt manner. The plaintiff, on the other hand, contended that the stewards had exceeded their jurisdiction, being absolutely bound by the rules, and that rule 3, vesting the extensive powers it did in the stewards, must be taken as limited to cases where they acted within tbe general rules and regulations under which the race

This view of the case was coincided in by the court, one member of which, however (Mr. Justice Fitzgerald), expressing the grave doubts which remained on his mind as to the propriety of the decision. A case much relied on by the defendant was Benbow v. Jones (14 M. & W. 193), in which an objection was taken to the horse which came in first on the ground that he was ridden by a professional jockey, which was prohibited by the rules of the race. The stewards on this ground awarded the prize to the second horse; the owner of the first horse then brought his action for the stakes, and the jury found in his favour, on the ground that the rider of the horse was not a professional jockey. This verdict was, however, set aside by the court on the ground

was run.

« EelmineJätka »