NOTES AND QUERIES ON POINTS OF PRACTICE. THE COURTS AND COURT PAPERS: Order of Court Spring Circuits LAW SOCIETIES: The Statistical Society Nottingham Articled Clerks' Society PROMOTIONS AND APPOINTMENTS THE GAZETTES BIRTHS, MARRIAGES, AND DEATHS To Readers and Correspondents. 241 242 242 242 243 to this in England, but it is quite natural that those who are disposed to invest in land should be anxious as to the "liens" which are to incumber it. 243 IT is rumoured that Sir COLMAN O'LoGHLEN is to be the new Solicitor-General for Ireland. We 246 learn that, in anticipation, the whole Irish Bar, of all shades of politics, join in condemning the appointment. The appointment is thus interpreted by the Dublin Evening Standard:-"In other words, the JUDGE ADVocate-General for ENGLAND is to be brought over from London, and placed at the head of a Profession which he has practically deserted for years, and in which at no time has he obtained a position of emiHe is to be set over Mr. Serjt. Dowse, Z. Y. X-You will receive the information you want on W READE, jun. -We have given you a suggestion by All communications must be authenticated by the name nence. and address of the writer, not necessarily for publica- Mr. LAW, Mr. PALLs, and other acknowledged tion, but as a guarantee of good faith. CHARGES FOR ADVERTISEMENTS. Just published, leaders of the Bar, whose politics accord with those of Her Majesty's present Government." The English Bar will heartily sympathise with the learned gentlemen whose legitimate advancement is thus taken away from them. The slight to Mr. Serjt. DowSE is the more marked, because he has just won a victory for the Government in Derry. PART XXVI. of MARITIME LAW CASES WE recently (p. 162) discussed a question of decided by all the Courts in England and Ireland, with appeal under the County Court Admiralty Juris a selection from the decisions of the United States Courts, LAW TIMES Office, 10, Wellington-street, Strand. Law and the Lawyers. Railway company-Scheme of arrangement-Confirmation 656 THE only foundation for the rumoured retire WALTERS r. WEBB V.C. MALINS' COURT. ment of Mr. Justice WILLES would appear to be that his Lordship's fifteen years' term expires during the present year. In our hearing the 660 report has been contradicted upon good 660 661 authority. Mr. GIFFORD, the Sheriff of Orkney and Shet- diction Act, which has now come before Sir ROBERT PHILLIMORE for decision. It was a case of cross-suits for damage by collision; and in both suits the amount claimed was 100%. Judgment was given in the court below in favour of vessel A., the damage to be assessed by nautical assessors. There was an appeal for vessel B., whose suit against A. was dismissed in the court below; but it was contended that there was no appeal in the suit against B, the actual damage sustained being under 50%, although the damages had been laid at 1001. Two questions arose on the hearing before Sir R. PHILLIMORE: : First, whether the two suits having been heard together in the court below should not be considered as one suit, in which case, as vessel B. claimed upwards of 50%. and had received nothing, the section (31) of the statute would not apply; secondly, whether the court had proper evidence before it that in the case in which vessel B. was defendant the amount decreed or ordered to be due did not exceed 501. "As to the first question," his Lordship said, “I am of opinion that the two suits cannot be considered as one, any more than if they had been respectively instituted in different County Courts. This position is further confirmed by the practice on appeals from the High Court of Admiralty, in which cross-suits which have been heard together are treated as separate with respect to the institution of the appeal. I must therefore dismiss this appeal when I have proper evidence before me that the amoant decreed or ordered to be due does not exceed 50%. The second question is whether I have or not the rere-quisite evidence on this point, and I am of opinion that I have not. The finding of the assessors as to the amount will, I presume, be made part of the decree nunc pro tume, and on an affidavit being filed that that finding places the amount under 501., I shall direct that the appeal in the suit in which The Adalia (vessel A.) is plaintiff, be dismissed." Therefore we still have the remarkable anomaly which we before pointed out. One vessel whose suit has been dismissed may appeal and have the judgment in a crosssuit practically reversed, but may still have to bear the burthen imposed in that cross-suit in the court below, because the damage found to have been sustained by the plaintiff vessel in such cross-suit does not exceed 501. In a letter addressed to Mr. PoWNALL, the chairman of the Middlesex magistrates, Mr. CROLL, dealing with the subject of prison discipline, makes the following suggestions:-1. To extend and develope the principle of employing prisoners in their own trades. 2. That, subject to the usual surveillance and control of the surgeon, the prisoners under sentence should 228ceive rations fixed on the lowest dietary scale; 229 and that all beyond bread and water, or some 230 such meagre diet, they should provide by their own labour. 3. That a contribution be levied 22 upon the proceeds of the convict's industry in payment for the rations provided by the prison 232 authorities. And, 4. That an adequate motive to work be provided. 929 230 231 232 232 233 233 233 235 236 236 237 237 237 Mr. READ, M.P., has answered our remark that 233 the agitation for tenant right is having an effect upon the English land market, by saying that it is unreasonable that it should have this effect. Mr READ says, speaking of tenant right, "It is not fixity of tenure; it is not payment for the goodwill of a farm; it is not rental based upon a Government valuation; it is not even twentyone years' leases. It is simply compensation for the tenants' unexhausted improvements. In other 237 words, it is demand for the extension to the whole of England of the tenant right which now exists generally in Lincolnshire and partially in some other counties." One piece of information is omitted by Mr. READ. How is the compensation to be paid to a tenant assessed? Unfortu238 nately tenant right in England is expected to follow much in the wake of the like right in Ireland, and our latest information from that 239 country is derived from a case in the Court of 23 Exchequer, in which it was mentioned that the tenant had no interest in the farm, but refused to give it up, although he had been offered the sum of 2001. as compensation for the surrender. Of course we do not say that it could ever come 238 The Edmunds Scandal Admission of Solicitors 2344 Court of Queen's Bench 234 Gentlemen Applying to be Admitted as Attorneys 234 238 MARITIME LAW: 238 240 THE conflict in company cases decided by the Master of the Rolls and the Court of Appeal, to which we referred on the 25th ult (ante p. 143), turns out to be more a misunderstanding as to fact in the particular cases referred to, than a conflict of law. A full court has heard an appeal from Lord ROMILLY in the matter of the Heyford Iron Works Company, and confirmed his ruling on the facts which were found to be on all fours with those in Migotti's case. As a consideration for the transfer of his interest in the Heyford Iron Works, Mr. PELL was to have 1500 fully paid-up shares, 1350 to be allotted to himself, and the residue to his nominees. Mr. PELL was put on as a contributory for the 1350 by Lord ROMILLY, but was removed by Lord Justice GIFFARD. The nominees were then put on by Lord ROMILLY, and the full court has kept them on. The reason of this is quite clear. The nominees bought of PELL, and not of the company, and they were held liable for the shares in respect of which they signed the memorandum. The legal question remains, however, upon which Lord ROMILLY and Lord Justice GIFFARD differ, namely, whether a person who sells his business to a company for a number of paid-up shares, and also signs the memorandum, is liable in respect of the shares appearing by the memorandum, or can claim exemption on the ground that they are the shares which for ned the consideration for the sale. every opportunity of stating it in public-that the "that the measure has been most favourably received by the Judges, the Bar, and the general public." From the article in the journal before mentioned we find the scope of the statute to be this. Each local judge in Ontario sitting under the provisions of the statute, and for every purpose connected with or relating to the trial of offenders, is created a court of record. No regular sittings are appointed, but the court sits from time to time as occasion may require. The Clerk of the Peace is appointed to act as clerk of the court, and the sheriff acts in the same way as in other criminal courts. A QUESTION of some importance to seamen and panies Act, as a mere piece of draughtsmanship, nature of the charge, extends to "all offences AN ABUSE. The jurisdiction of the court, as respects the for which a prisoner may be tried at a general session of the peace," in other words, to nearly every crime, short of a capital felony, known to the law; and if convicted, "such sentence as the law allows and the judge thinks right" may be passed upon the convicted persons. The jurisdiction, however, is limited to persons committed to gaol on such charges and consenting to be tried by the Judge. is really one of the best possible Acts; but it is owners of vessels was discussed before Mr. an Act which, if the Legislature did but know the LUSHINGTON at the Thames Police Court on Wed- extent of the ruin and destruction it occasioned to nesday, namely, whether, in a proceeding by sum- families, it would regret its adoption. It consists mons to recover wages under 501., a magistrate has of 212 clauses, and every one of those clauses power to refer the matter to the Court of Admi-interferes with the law of contract. It is obvious ralty. Sect. 189 of the Merchant Shipping Act that the persons who drew it could not have been of 1854 says that "no suit or proceeding for the in the least aware of the state of the law on that recovery of wages under the sum of 501. shall be particular matter. The truth is, the Legislature instituted by or on behalf of any seaman or entrusts the drawings of Acts of Parliament to men who do not know what the working of apprentice in any court of admiralty or vice- them will be. They would be ingenious and The procedure is this: Within twenty-four admiralty, &c. unless any justice acting beautiful, no doubt, if we had no law of contract hours after a prisoner is committed to gaol for under the authority of this Act refer the case to in this country-if we were a barbarous country, trial upon any such charge, the sheriff notifies be adjudged by such court." Sect. 188 says that and if civilisation were only just commencing. the Judge of the fact, and when the local prosein such cases the decision of the justices shall But it is thrown upon a Judge to administer cutor is ready to proceed (having received and be final, and in our opinion sect. 189 must be the law of this court, and that Judge finds an examined the depositions and papers which the taken as a proviso to the foregoing section, and Act which governs other rights which were law requires to be laid before him for the purthus a justice or a magistrate is not, as Mr. not in the view of the persons who framed LUSHINGTON said, "bound to decide the ques- the Act, those persons never having dreamed pose) he informs the Judge, and an order is at tion," but may refer the matter to any court once issued, and under it the prisoner is brought that other rights would be affected. I speak in A formal named in the section. Unless justices may so the hearing of one legislator in this court (Mr. before the Judge in open court. Osborne Morgan), and I beg him to consider what accusation in the nature of an indictment detransfer a proceeding the provision in sect. 189 ruinous consequences this kind of legislation en- scribing the offence (prepared in the mean time as to restriction of suits would be surplusage. tails upon everybody. Persons who draw these by the public prosecutor from the depositions, Acts of Parliament are called-and very properly &c.) is then read to the prisoner by the Judge, legislators. So they are; because the Legis- as the charge against him. The prisoner is then lature leaves the thing entirely in their hands informed by the Judge that he has the option WE fear that if we could look behind the scenes in the criminal courts of the metropolis there understood by them what the administration of the intervention of a jury, or remaining untried without saying a word upon it. It is not distinctly of being forthwith tried by the Judge without would be a wonderful revelation of abuses at the laws of this country is, for if the ruin and till the next court of general session of the present shrouded in secrecy. Occasionally acci- destruction occasioned by these things were dent draws the curtain aside, and then every-known, the Legislature, I am sure, would not allow peace, or oyer and terminer. If the prisoner, as body exclaims, "Who would have thought it ?" them to pass. It is very well for me to hear the he has a right to do, declines the jurisdiction and One of these glimpses of what is going on was case of Aspinall v. Mitchell, or any other case, and demands a jury, he is remanded to gaol. If unexpectedly afforded in a case heard by Mr to decide upon it; but the purposes of justice will he consents to be tried by the Judge, he is Serjeant Cox at the Middlesex sessions on Wed- not be answered by any order that I, or any at once arraigned and called upon to plead nesday. One PAGE had, in August last, pleaded it will not have the slightest effect. other Judge, may make in these isolated cases; to the accusation. If the prisoner pleads All this guilty to an indictment for keeping a disorderly Winding-up Act does is to sweep up a great plea be "not guilty," his trial is at once pro"guilty," sentence is at once passed. If his house, and was, as the practice is, discharged on mass of property, which is all spent in litigation, ceeded with, if the Crown and prisoner are both recognisances to come up for judgment if called which does not benefit, I believe, even those persons ready, or, if not ready, the proceedings are adupon, on condition that he gave up the house who are reimbursed their expenses by it. There ment now, on a complaint by the parish officers body will pay the slightest attention to it, they in the discretion of the Judge for the purpose of complained of. Being so brought up for judg- cannot be anything more preposterous; and if any. journed to an early day. On that day the trial is entered upon, but may be further adjourned that the house had been only colourably assigned, will see that it is so at once. I can only say that and that he was still in fact conducting the in the performance of my duty I feel myself very completing the evidence for the Crown; that is, filthy business there, one ROBINSON, the clerk much affected by it. I cannot administer an Act before the prisoner has gone into his evidence; to the parish solicitors, by whom the prose- destruction, without noticing the very painful further evidence, of which he was not aware at of Parliament of this kind, which creates ruin and or to enable the prisoner to produce other and cution had been and was conducted, was put into the box as a witness, when the defen- position in which I am placed, and I am glad to the time he entered on his defence, as being dant asserted that he had paid to him in different course, every judge on the bench who thinks he is ceedings, and as to evidence at the trial, is the have this opportunity of doing so. It is not, of material thereto. The rule as to the other prosums 147. in relation to this prosecution. The bound to take any heed of the actual consequences Judge immediately examined the clerk as to of administering the law. The law is there, and same as in ordinary cases, and before passing the astounding fact so stated, and after some he is here to administer it. sentence upon the prisoner, the same questions hesitation, the clerk admitted that he had will be asked as in other criminal courts; and received from the defendant 87. altogether, in if the prisoner has anything to urge why judgthree separate sums, at different times, during ment should be arrested, or why sentence should the progress of the prosecution. Being asked not be passed, it is to be heard and determined for what services? he said, "for giving him by the court. None but barristers-at-law will advice." Asked by the Judge, "What advice he, be heard as counsel. the clerk to the solicitor for the prosecuting parish, intrusted with the conduct of the prosecution, gave to the man he was prosecuting?" He said that it was "For advising him to plead guilty, and then that he would get him off without punishment! " Of course, the very respectable solicitors whom he represented were entirely unconscious of the transaction, and will deal with it as it deserves. But we fear it is only one instance of a multitude, of weekly occurrence, in which the criminal law is abused into an engine of extortion, and perverted by iniquitous compromises that do not come under the control and cognisance of the courts. THE LAW OF JOINT-STOCK COMPANIES. VICE-CHANCELLOR STUART has delivered, in open court, the following very important opinion on the working of the Law of Joint-Stock Companies, and the manner in which it has been prepared for, and passed by Parliament. We reserve comment until next week. His Honour, addressing Mr. Dickenson, said:"It is deeply to be regretted-and I wish to take We have abstract questions discussed, and have to decide exactly CRIMINAL TRIALS WITHOUT JURIES. This is certainly an accurate description; it is The arguments advanced in favour of this procedure are, (1) speedy trial of prisoners, and thereby a saving of expense; (2) the prevention of the lengthened association of young with hardened criminals before trial; (3) provision against the injustice of keeping innocent persons incarcerated who are unable to find bail. The Judge, instead of before twelve, is obvious. one argument in favour of a trial before a single "What intelligent man," it is said, "conscious of innocence, would not prefer being tried before an educated man, trained to the investigation of facts and above the reach of irregular influences, rather than by a number of men taken from the general community, utterly unacquainted with the investigation of facts, and with but little scope for the exercise of their reasoning powers." This is the whole question, and it is a question which is coming more nearly to the surface in England, and our criminal courts are now the only courts in which a Judge cannot by any possibility be called upon to decide mon Law, and Divorce, the Judges are upon facts. In Chancery, Bankruptcy, Comnow in various ways selected by the parties to weigh and adjudicate upon facts. It would be in the last degree unconstitutional to compel any person to submit to judicial decision upon both on being asked in the usual way why sentence law and fact, and more particularly so where the should not be passed upon him, he narrated the subject matter is a criminal charge. But we foregoing circumstances, and urged that they can easily believe that even in England the time formed (to use the words of the statute)" a lawful is not far distant when it will be made optional and reasonable excuse, or pretence," for his confor the prisoner to be tried with or without a jury. duct. The convict also proposed to read to At any rate we fully concur in the views of the learned judge the letters written to his our Canadian contemporary, and consider the attorney, by the Home Secretary, and other experiment one which in a new country might Government officials (the counsel for the prosebe safely made with possibly useful results.cution, at the same time, admitting the truth of And we in the old country may derive advantage his statements), but the learned Judge said it from observing the operation of the statute, and would be useless for him to do so, as he (the if we see that it works well, may in time follow Judge) was unable to enter into the matters the example thus set us. mentioned, but that the circumstances ought to be communicated to the Secretary of State, and that he had no alternative but to pass the sentence recorded by Baron PIGOTT, namely, five years' penal servitude. CONVICTS AT HOME AND ABROAD. We have been furnished by Mr. CLUTTERBUCK, solicitor, of Worcester, with the history of a convict which illustrates an anomaly in our system of criminal punishment. The question raised by the facts to which we are about to refer is this: A convict being transported beyond seas, and then granted a free pardon on condition that he keeps out of Great Britain, should he, when unable to remain in the colony to which he has been sent by reason of the colonial law, be kept in prison in England without having committed any new offence save that of being in this country? The facts of the history of JOHN PARSONS, which we glean from his own undisputed statement, and letters which have been received from the Home-office are these: In 1854 he was sentenced at the Birmingham sessions to fifteen years' transportation for housebreaking, and in 1857 he was sent to Western Australia, in which colony he received in 1861 a pardon, the condition of which was that he should not return to the United Kingdom during the residue of the said sentence. did so. Being desirous of complying with the condition of his pardon, he went to Adelaide to seek employment, but was there recognised as a pardoned convict, arrested, and taken before a bench of magistrates, who told him that unless he left the colony within seven days, he would be sent to gaol for three years. He produced his pardon, but was told it was no use to him there, and that "as England had sent him out, England must take him back," and that he should be supplied with the means of going there if he required them. He declined the offer, and applied to the captain of a vessel bound for Melbourne to be allowed to work his passage to that place, but the captain said he dared not take him, as he, the captain, would be fined 100%, and the convict would be imprisoned if he To avoid the threatened imprisonment at Adelaide, the convict embarked within the seven days on board a vessel bound for Singapore, and on arriving there was told that, being a discharged convict, he should not remain. Being thus driven about, the convict hired himself to the master of a Dutch trading vessel which arrived in London in March 1863. The convict shortly afterwards returned to Birmingham, where he married, and remained nine months unmolested by the police, and then went to reside at Worcester with his wife, where he was arrested on suspicion of having been concerned in a burglary, but was discharged on investigation; and in Feb. 1866 he was again arrested on the charge of being illegally at large, and committed for trial. The convict's attorney being desirous to ascertain the truth or other wise of the convict's statement as to his pardon and subsequent treatment in Australia, wrote to the then Secretary of State for the Home Department for information, and received a letter in reply, in which it is stated that "As regards the colonies of South Australia and Victoria, there appears no reason to doubt the substantial truth of the convict's statements. The colonial Acts on the subject in force in1861 were in South Australia, The Convicts Prevention Act, No. 18 of 1857, and in Victoria the Act No. 3 of 18th Vict. (since made perpetual). Under their provisions the master of a ship, taking to South Australia or Victoria a person holding only a conditional pardon, would be liable to a penalty of 100%., and the convict to penal servitude, hard labour on the roads, or imprisonment." At the Lent Assizes, 1866, the convict was tried before Baron PIGOTT for so being illegally at large, and found guilty. Certain points were reserved by the learned baron for the consideration of the court above, but they were overruled, and the convict was brought up at the then ensuing assizes before Mr. Justice KEATING, and The convict is now in Parkhurst Prison, and it is nearly four years since he was arrested for so being illegally at large. The original sentence of fifteen years passed on the convict expired on the 20th Oct. 1869. It has been urged upon the Home Secretary that the convict's conduct in returning to England was, under the circumstances, of so venial a character, and the elements of hardship about the case are so patent, that he will consider the convict has been punished enough for the offence of which he was found guilty, and will see fit to advise Her Majesty to remit the remaining part of the sentence of 1866. Now the startling circumstance of the case is this: Owing to the colonial law being in antagonism to the law of England, and thereby rendering it a matter of the greatest difficulty for a convict to comply with the terms of the pardon granted to him, this unfortunate man has been in gaol in England for three years and nine months for being really in a position which the colonial law made almost inevitable. The remission of the remainder of the sentence of five years' penal servitude is asked for at the hands of Her MAJESTY. The memorial is signed by many influential persons in the neighbourhood where the convict passed nine months without offending against the law; and considering the state of the law in the two countries, we certainly think it ought to receive very serious consideration. THE BERKHAMPSTEAD COMMON CASE. THERE appears a general disposition on the part of the press to attach too much importance to the decision of the Master of the Rolls in the case of Smith v. Earl Brownlow, commonly known as the Berkhampstead Common case. That decision was simply a decision on a question of fact, and cannot have the smallest effect upon other cases affecting waste lands. His Lordship said that the case of the plaintiff was fully proved, that is to say, it was shown by evidence that rights of herbage and pannage over Berkhampstead Common are still legally vested in the tenants of the manor. This being substantiated, it of course fell upon the lord of the manor to show that, although these rights do exist, yet that the extent to which they could be exercised by those justly entitled, having regard to the nature of their holdings, was not so great as to require the whole of the common. This was a question of fact, and here Lord Brownlow failed. Now it may be said that Berkhampstead stands in a position peculiar to itself. Lord Romilly found that the manor of Berkhampstead comprises both the borough of Berkhampstead and the hallimote of Northchurch, and is eleven miles in circumference. It is moreover a considerable distance from any great centre where bricks and mortar are extending their encroachments. Consequently customs have lived longer, the rights which peculiarly belong to the most rural districts have been preserved by constant exercise, and thus the evidence required to support a claim opposed to the lord's right to approve was forthcoming. Had there been a considerable decrease in the number of tenants claiming to exercise their rights, and generally near cities and large towns there is a very large decrease-and had Lord Romilly decided that the remaining commoners were still entitled to exercise commonable rights over the whole waste, the decision would have been most important. His Lordship decided, however, directly the other way. He found that if the lord were allowed to make the proposed inclosure of 400 acres, there would not be sufficient waste left upon which the tenants could exercise the rights of common to which they had proved themselves entitled, and decreed a perpetual injunction to restrain the lord from inclosing. This principle has been mistaken by those who have written on the subject in the public journals, and foremost among them by our intelligent contemporary the Pall-Mall Gazette. These are the remarks which it founds on the decision : -"The Master of the Rolls decided that, under the circumstances, it was incumbent upon the lord of the manor to prove that the inclosure would leave sufficient for the commonable rights of the tenants. This the lord neither did nor even attempted to do, and a perpetual injunction is accordingly granted against him. This principle is obviously of great importance, and much in favour of the preservation of commons. It is very difficult in any given case to determine precisely who are the commoners, what are their rights, and how much will be sufficient to satisfy those rights. The difficulty is of course increased in the case of commons near the metropolis, where rights of the nature described have been allowed to fall out of use in consequence of the increase of population. If it were necessary to prove what was the precise extent of these rights in each case, the task would often be impossible, and the lord of the manor would get the whole advantage resulting from their practical disuse. If, on the other hand, he is bound to show that he has left a sufficiency before proceeding to inclose the surplus, the difficulty will rest with him, and the commons may remain in their native wildness. We may therefore take the decision as a good thing in itself, and as a good omen for the various suits now in progress." obvious from the remarks which we have already The error underlying these comments will be made, for we have stated that in the first place the Master of the Rolls found that the tenants had proved their rights. From the report which appeared in the Times we learn that Lord Romilly said "the evidence of user related to twentynine different properties, and in eighteen of these cases it was admitted that the property constituted either a freehold or a copy hold tenement of the manor, assuming that he was right in his conclusion that the tenants of either manor (if, indeed, there were two manors) enjoyed indiscriminately commonable rights over the whole waste." And the report goes on, "His Lordship thought, therefore, that the frame of the suit was correct, and that as regards the common right of herbage, pannage, and the cutting of furze and gorse, the commoners' right was established. It remained then for the lord to show that he was entitled to approve, and that a sufficiency of the waste was left for the commonable rights of the tenants. This the lord had entirely failed in doing; indeed, he had not attempted it." It will be observed that the Pall-Mall Gazette says, "It is very difficult in any given case to determine precisely who are the commoners, what are their rights, and how much will be sufficient to satisfy those rights." True; it is very difficult, but the difficulty is not removed by Lord Romilly's judgment, as supposed. That proof must come from the tenants, if they are to restrain the lord. If it lay upon the lord to point out who were commoners, what were their rights, and the extent of those rights, and then to prove that he left sufficient for them, the Hampstead case would never have gone to common law. It has gone, because the Master of the Rolls was not satisfied what were the The lord has nothing rights of the commoners. to do in the way of defence until the commoners have established their rights before a jury. The rights being proved to exist, and the tenements defined to which those rights attach, it is then for the lord to say, "Admitting those rights to exist, I leave enough for their reasonable exercise." We have always said that attempts to sustain a claim as of right to ride and drive over every Such claims part of a common must fail. must, if tenable at all, be of very modern date, and could not by any possibility be taken as restraining the right of the lord to approve under the Statute of Merton. In the Berkhampstead case, Lord Romilly found that the rights of estovers, and to use the waste as a recreation ground were not established, and his decree refers merely to common of pasture and rights ejusdem generis. We welcome the decree most cordially for what it is worth. We are glad to see that the rights are being kept alive which will preserve these outlying commons. But near the metro polis such rights must lapse, unless the ancient inclosures, however dealt with, are taken to be ancient inclosures still, with all their ancient rights attaching. This we do not expect, and as the evidence in the cases of Wimbledon and Hampstead is excessively meagre in support of common rights, we think that the process of purchase should be at once adopted in preference to a doubtful litigation after which, the lord's rights being established, his price would be raised in proportion. THE MERCHANT SHIPPING AND SALVAGE BY HER MAJESTY'S SHIPS. cargo, or freight. The power of inspectors as LOCAL CHARGES ON SHIPPING. Subject and without prejudice to the exercise of any lawful power or right existing when the Bill becomes an Act, no person is to be allowed to levy dues unless they are applied to some shipping purpose, the benefit whereof is enjoyed by the ships or goods on which such dues are levied. And where any treaty, convention, or agreement entered into before the passing of the It is objected that salvage ought not to be Government of any foreign state contains any Act by or on behalf of Her Majesty with the allowed to Her Majesty's ships which are main-stipulation respecting dues, no person may levy tained at the expense of the nation. The pre- dues otherwise than in accordance with such Bent Government is not likely to take this view, stipulation. and the sections will probably stand which provide that claims by such ships may be made and prosecuted by the Admiralty, at their discretion, on behalf of any such commander or crew, before any court having admiralty jurisdiction, and that a claim may be allowed for the cost of any stores belonging to Her Majesty supplied to any ship in distress, but no claim shall be allowed for the risk, loss, or damage of any ship belonging to Her Majesty, or of the appurtenances on board such ship. By the old Act, sect. 184, a claim was not allowed to be made for the use of any stores or other articles belonging to Her Majesty supplied in order to effect such ser vices, or for any other expenses or loss sustained by Her Majesty by reason of such services." The jurisdiction of courts of admiralty in salvage is, of course, extended to "every court having admiralty jurisdiction." THE SURVEY OF SHIPS. It is provided that receivers of wreck may be appointed by the Board of Trade, and have the same powers as are conferred upon inspectors under the 14th part of the Act, which are the same as those mentioned in sect. 14 of the Act of 1854. An important point in connection with this matter is brought forward by the Newcastle Chamber. They say that certificates of survey are obtained with the greatest ease by interested parties, and that instances of fraud are frequent, in which foreign and British ships are condemned on such surveys without the least reason. They propose, therefore, that a provision should be made that in case any ship puts into any harbour or place in distress, or requiring help, or in an unfit or unseaworthy state, a survey may, on the request of any person interested in the ship, cargo, or freight, be made in England, Scotland, or Ireland, by the registrar of the Admiralty Court having jurisdiction in the district, or his deputy specially appointed, by officers of customs, or other persons authorised under the Act; or in the British possessions by any tribunal, governor, justice of the peace, or person having or exercising any civil or criminal jurisdiction under the Crown or any legislative authority, properly authorised by the Act. And it is proposed that the last mentioned tribunal or persons "shall have the power to order a survey upon any shipin any case in which they may think it necessary or advisable to order a survey, and a certificate under the hand of the surveyor or surveyors so appointed, and countersigned by the tribunal or persons so appointing, shall be a sufficient authority and discharge for all underwriters and other persons interested to pay or receive, and be received in evidence and deemed conclusive as to the rights of parties, and no survey made otherwise than as before required shall be deemed valid. And any party interested shall have all rights of recourse or appeal, and power to institute and prosecute all proceedings in the court or courts having jurisdiction in the places aforesaid, and the provisions herein contained shall be auxiliary to, and form part of the procedure of such courts." It may be very necessary to provide some machinery for obtaining honest surveys of ships in distress, or in an unfit state, but we question whether that suggested would work well. For example, we expect that the registrars of County Courts having jurisdiction would be very incompetent persons for performing the duties required. But this is only as regards the machinery. It is no doubt a good suggestion that the survey should be made in Great Britain at the request of some person interested in ship, (a) By F. O. CRUMP, Esq., Barrister-at-Law. case of the Isle of Man, by and in the staff of the government of that island. Where any jurisdiction is to be exercised or thing done by or proceedings taken in a superior court of admiralty or a Judge of the superior court of admiralty, such jurisdiction may be exercised and thing done and proceedings taken by and in the following courts:- In England and Ireland the High Court of Admiralty of England and Ireland respectively, or the Judges of those courts: In Scotland the Court of Session. or either division thereof, or the Lord Ordinary officiating under bills during vacation, or, so far as respects the Judge the president of the Court of Session. Where any jurisdiction is to be exercised or thing done by or proceedings taken in a local by and in the following courts; namely, in Engcourt of admiralty, such jurisdiction may be exercised and thing done and proceedings taken land a court hgving jurisdiction under the County Court Admiralty Jurisdiction Act 1868; in Ire land a court having jurisdiction under the Court of Admiralty (Ireland) Act 1867; in Scotland the sheriff or sheriff substitute for the county. DETENTION OF SHIPS BY OFFICER OF Customs. Where in any harbour dues are levied which are not applied to some shipping purpose, the benefit whereof is enjoyed by the ship or goods on which such dues are levied, the harbour authority of such harbour may apply to the Where any officer of customs has power under Board of Trade to make, and the Board of Trade the Act to detain any ship, any officer of cusmay make, a provisional order for transferring toms may refuse to grant a clearance or transire such dues to the harbour authority. Such to such ship until the cause of such detention is transfer may be made for such consideration, removed, and may call to his aid any officer of and in such manner, and upon such terms and the army, navy, or marines employed in the preconditions, and with such powers as to the har-vention of smuggling, or any excise officer, bour authority may seem expedient: (s. 655). LEGAL PROCEDURE. The provisions of the old Acts bringing offences within the jurisdiction of British tribunals are neatly summarised at the commencement of Part XVII. The offences are to be taken to have been committed within British jurisdiction where they are committed in any place ashore out of Her Majesty's dominions by any master, seaman, or apprentice, who, at the time the offence is committed is, or within three months previously has been, employed in any British ship; where any British subject commits any crime or offence on board any British ship or boat, or on board any foreign ship or boat to which he does not belong, or where any person not being a British subject commits any crime or offence on board any British ship or boat on the high seas. Formerly the consular officer before whom an offender was brought was empowered to send him to the United Kingdom or to a British possession. It is proposed that he should be able, as another alternative, to send him to any foreign port or place in which Her Majesty has jurisdiction in which there is a British court capable of taking cognizance of the offence. If at any time it is made to appear to any court having jurisdiction, under the Act, to try a person accused of an offence committed at sea, that it would be expedient to the ends of justice to try such person at some other place than that in which such court had jurisdiction, the court may order such person to be removed to such other place. And as to depositions admissible in evidence, there is a clause as to foreign ports, that if the deposition is made in any foreign port or place in which Her Majesty has jurisdiction, it shall not be admissible in such port or place. Nothing in the Act is to prevent any person from being indicted, or being liable under any other Act or otherwise to any other or higher penalty or punishment than is provided for any offence by this Act, so that no person is punished twice for the same offence. The Board of Trade is to be liable to costs, charges, and expenses incidental to any pro- Where by this Act anything is required or of Man by the governor. exercised, or matter done by, or proceedings taken police officer, constable, or other person having authority from the Commissioners of Customs or Inland Revenue to make seizures, and may put on board the ship any one or more of such officers or other persons to take charge of the same; and if any officer or other person put on board or in charge of any ship detained as afore said is removed therefrom, or if such ship proceeds to sea with any such officer or other person on board, the ship shall be liable for every such offence to a penalty not exceeding 100%, and the further penalty of 51. for every day during which such officer or other person son is prevented from returning, or is unable with reasonable diligence to return, to the port or place from which he has been taken, besides the reasonable expenses incurred by such officer or other person in returning to such port or place. The penalty and expenses may be recovered by the Commissioners of Customs as a penalty, or as if they were dues payable to them by such ship: (sect. 727.) THE doctrine of election by assignees, for a long period familiar to lawyers, will not trouble the present generation; but we are about to refer to a case dealing with it, which we reported last week, in order that we may more thoroughly appreciate the new law of disclaimer. The case we refer to is that of Williams v. Taylor, 21 L. T. Rep. N. S. 612. There the Court of Exchequer actually differed upon the question whether the acts of the defendants did or did not amount to such an unequivocal election to take the lease as precluded them from disclaiming it. The sections of the Act of 1861, upon which the case rested, were sects. 117 and 131. The former said that upon the appointment of the creditors assignee all the estate, both real and personal, of the bankrupt should be divested out of the official assignee and vested in the creditors' assignee; and the latter says, "In every case of a lease or an agreement for a lease it shall be lawful for the assignees to elect to take the same, and the benefit thereof, and to keep possession of the premises up to some quarter or half-yearly day on which rent is made payable by the same lease or agreement, such day not being more than six months from the adjudication of bankruptcy, and upon such day to decline such lease or agreement for a lease.” To show the difficulty of deciding what was an election we have only to look at Baron Cleasby's judgment. He said, "The merely being in possession by the messenger, for the purpose of pictures, or the like, would of itself leave it an disposing of the property, as goods, chattels, open question whether or not there had been an election, and to determine whether or not that act amounted to an election, we must, I think, see whether there is anything showing them to have been there in the character of tenants. The moment it is established that they have a claim of title as tenants or, in any way, to the lease by election, the moment they have done any act availing themselves of any right to the occupa- We have presented to our readers this case, exhibiting as it does a difference of opinion on a question of fact, which would have rendered it impossible for a jury to have come to a unanimous verdict, in order to contrast with it the terms of the Act of 1869. Sect. 23 of that Act says that, "when any property of the bankrupt acquired by the trustee under this Act consists of land of any tenure burdened with onerous covenants, of unmarketable shares in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exercised any act of ownership in relation thereto, may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudication, and if the same is a lease, be deemed to have been surrendered on the same date, and if the same be shares in any company be deemed to be forfeited from that date, and if any other species of property, it shall revert to the person entitled on the determination of the estate or interest of the bankrupt, but if there shall be no person in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt. Sect. 24 limits the time for disclaimer, thus :"The trustee shall not be entitled to disclaim any property, in pursuance of this Act, in cases where an application in writing has been made to him by any person interested in such property, requiring such trustee to decide whether he will disclaim or not, and the trustee has for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the court, declined or neglected to give notice whether he disclaims the same or not." be founded upon our traditions regarding pro- of much the same which, like our own before the Roman conquest was introduced of the English law were those parts which pressed upon the tenant, as the powers of distress or forfeiture, or the landlord's right to fixtures. The maxim of the Roman law, quidquid solo plantatur solo ceditthat everything annexed to the soil belonged to it was rigidly applied without the condition which the Roman law imposed, that the landlord was bound to pay for it. Thus this perverted and one-sided law, along with uncertain tenure, placed the tenant at the mercy of the landlord, and produced a state of things exactly the reverse of what existed in England. There, tenure having become inheritable by law, had become as a rule hereditary by custom, its perpetuity was protected by tenant right. In Ireland, on the contrary, neither certainty of tenure nor tenant right was given, either by law or custom; the one could not exist without the other. The two things are correlative; for if the tenant had no right to compensation for improvements, they could be made the ground of demands for increased rent; and if there was no certain tenure, the tenant could be compelled to pay it. The great question presented for consideration is whether under any circumstances a landlord has a right to take a tenant's improvements without paying for them. Mr. FINLASON says it is contrary to the Roman law and the old English law, which was formally extended to Ireland. "And on the other hand, the right to compensation is shown by law to be just and reasonable; and thus there is a solid basis for legislation upon a broad and equitable principle approved by law.” Originally, it is quite clear, all agricultural tenancies, servile or free, manorial or by the common law, was hereditary. These became obsolete, and were replaced by long leases, as for ninety-nine years, or for three lives, or renewable followed yearly tenancies, which attained an for long periods, or even for ever. Then importance by means Consequently, we see that it is no longer left vile tenures. causes as consolidated copyholds out of ser"From the history of the Engto a court to infer whether there has been an lish law of tenure," says Mr. FINLASON, election to take a lease or otherwise. A trustee," this great lesson is to be deduced, that it would appear, may keep the lease as long as he likes, and disclaim when he pleases, unless the tenant in such a position of inequality and when there is any disturbing cause which puts he is applied to by some person interested. inferiority to the landlord that he cannot really "Upon the execution of the disclaimer," it is to assert freedom of choice or of will, that disturb be observed, a lease is to be deemed to have been ing cause requires to be removed by law, either surrendered on the date of the adjudication. It legislative or judicial, before the relations is left, therefore, to the person interested to apply of landlord and tenant can be restored to their in writing to the trustee to disclaim, for if he does sound condition. History shows that there was not so apply, the trustee is not bound to disclaim, such a disturbing cause in the existence of serfnor is he liable for any accruing rent; for when dom or villienage in this country. So long as it he does disclaim-which may be within twenty-existed there were bitter jealousies and hostilities eight days after he is applied to-the disclaimer between the two classes- the serfs and the lords. has relation back to the date of the adjudication. The result of serfdom was that there could be no No difficulty, we apprehend, can arise out of this free tenancy. Thus LITTLETON pointed out, censtate of things, because the lessor will find it to turies ago, when he explained that tenancy at his interest at once to apply to the trustee, and will was essentially a tenancy of serfs: If the the trustee will be unable to escape respon- lord maketh a lease to a villein for a term of Isibility by any ambiguous or equivocal pro- years, this is an enfranchisement. But if the should pay the value of them. ceedings. THE HISTORY OF LAND TENURES. IT is becoming perfectly clear that the disputes between landlords and tenants respecting new tenancies will have to be dealt with upon a principle different to that to which we have hitherto been accustomed. At the Stafford Chamber of Commerce the following resolution has been approved: "It is desirable to provide by law, as regards agricultural tenancies, that all differences between landlord and tenant, on the expiration of a tenancy, shall be referred to arbitration; that the arbitrators, one to be named by landlord, one by tenant, or an umpire named by the arbitrators if they differ, shall finally determine the amount due either to landlord for depreciation of property by default of tenant, or to tenant for unexhausted improvements, except where otherwise expressly stipulated by contract between the parties." The law which we have to anticipate must lord maketh to him a lease to hold at will of the that the curious An acute distinction is drawn between England and Ireland in respect of the freedom of tenure. In Ireland the disturbing cause, the insecurity of tenancies, has existed, and no custom has arisen to render it secure, there being no legal basis upon which it could be raised. Though the English law was nominally extended to Ireland at the time of the conquest of the country, it was not directly carried out except in the small portions reduced to real subjection, which for centuries were small. In the mean time the Irish system of tenure, The connection between tenant - right and tenure, our author considers, is the key to the solution of the existing question. We cannot follow him through his very learned dissertation on the history of tenures, and it would hardly be fair to him to do so. We will only quote him in conclusion to show that he considers himself justified in drawing an analogy between land and fixtures, and basing thereupon an opinion that it would be a just extension of the law to secure to a tenant compensation for improvements, thereby taking from the landlord one strong inducement to change his tenants. He says:— The general rule of law has always been, that upon the principle of the maxim Quicquid solo plantatur solo cedit, whatever has become annexed to the land belongs to the freeholder, and is not removable by the tenant, which, however, as it was a maxim of the Roman law, was quite consistent with the condition imposed by that law, that the landlord Questions as to fixtures arise either between heir and executor, tenant for life and remaindermen or reversioners, and landlord and tenant. Originally, as all free tenure was inheritable, no such questions arose as between landlord and tenant, and they have only arisen in that relation since the rise of tenancies for years, and in such cases the law has always been liberal in its principle, and as far as possible favourable to the tenant. It has long been held, and was so held, not by virtue of any custom, but as part of the common law, and upon the general principle that it was just and equitable, and for the public good, because for the benefit of trade, that trade fixtures put up by the tenant may be removed by the tenant, even although otherwise they might not be under the general rule. It is obvious that this principle would equally apply in favour of agriculture, which has always been considered by the law of the first and highest importance to the public. And although the contrary has been held in point of law, it was probably for the reason already suggested, that, especially in old times, new buildings were rare in |