into a vault below owing to some bars which went under the pavement being out of repair. The defence was that though, as between the landlord and the tenant, the former might have to bear the expense of repairs, yet, as between the tenant and the public, the tenant was bound to look to the state of them, and should be liable for any accident that might happen by his neglect. But the court declined to take this view. "I agree," said Buller, J., "that the tenant as occupier is prima facie liable to the public, whatever private agreement there may be between him and the landlord. But if he can show that the landlord is to repair, the landlord is liable for neglect to repair." And Heath, J., put this result upon the principle of avoiding circuity of action: If we were to hold that the tenant was liable in this case, we should encourage circuity of action, as the tenant would have his remedy over against the landlord." The law as thus laid down was accepted in Mills v. Temple-West (1 Times L. R. 503), where Field, J., said that, if there was evidence for the jury that the landlord had agreed to do the repairs, he would be liable to the public for the consequences of a neglect of that duty, especially if it appeared that he had had notice of the want of repair.

Moreover, although the landlord may not be under any liability to the tenant to repair, yet if he lets the premises in a dangerous condition, and does not impose on the tenant an obligation to repair them, he is liable to the public for any accident which may result. If," it was said by Erle, C.J., in Todd v. Flight (9 C. B. N. S., p. 389), "the wrong causing the damage arises from the nonfeasance or the misfeasance of the lessor, the party suffering damage from the wrong may sue him." The condition of the premises constitutes a nuisance, and the lessor is liable if he lets them or relets them while the nuisance continues: Reg. v. Pedley (1 A. & E. 822). In Gandy v. Jubber (5 B. & S. 78) a tenancy from year to year was at first held to recommence every year, so as to render the lessor liable for the existence of a dangerous state of non-repair at the beginning of each year of the tenancy; but the decision was reversed (9 B. & S. 15), and such a tenancy is to be taken to go on without break. It is the same also with a weekly tenancy (Bowen v. Anderson, 1894, 1 Q. B. 164; disapproving Sandford v. Clarke, 21 Q. B. D. 398).

The

It would seem, however, that the prima facie liability of a landlord who lets premises in a dangerous.condition ceases if the tenant is placed under an obligation to repair. The principle upon which his liability is founded is that he has authorised the continuance of the dangerous state, and this is not the case if the re-' sponsibility for repairs has been transferred to the tenant. In Pretty v. Bickmore (L. R. 8 C. P. 401) the defendant let a house to a tenant under a lease, by which the latter covenanted to keep it in repair. coal cellar was under the footway, and the iron plate covering the aperture was, at the time of the demise, out of repair and dangerous. A passer-by fell into the aperture, and was injured. It was held that he had no remedy against the landlord. "The tenant," said Bovill, C.J., "knowing that the coal-shoot wanted repair, was bound to put it in a safe and proper state. I think there was no obligation on the lessor to do it, and that the lessee would have no remedy over against him. If the duty of the repairing had rested upon the landlord, no doubt he would have been liable." In this case the question of the landlord's knowledge of the defect was not raised, and since the liability was treated as being only on the tenant it was not material. In the similar case of Gwinnell v. Eamer (L. R. 10 C. P. 658) there was no evidence of such knowledge, and this was used by Brett, J., as a reason for exempting the landlord : "The owner at the time [of letting] had no knowledge of the defective state of the grating, and had no means of knowing it, and was guilty of no negligence in being ignorant of it." The learned judge intimated that, had the landlord been aware of the defect, he might have been liable as well as the tenant,

"I

though his own opinion was against this view. doubt very much," he said, "whether, if the burthen of repair is cast upon the tenant, the duty of the land. lord does not altogether cease."

In cases where the landlord has contracted to repair, or where he lets the premises in a dangerous condition and does not impose the burden of repairs upon the tenant, it is important to ascertain whether his liability depends upon knowledge of the state of the premises. In Broggi v. Robins Day, J., as stated above, held that the landlord had notice, and hence it was unnecessary to determine what the effect of want of notice would have been. The Court of Appeal have, however, come to an opposite conclusion as to the facts. The landlord's attention had not been called to the defect in the floor which was the cause of the accident, and hence he had committed no breach of his undertaking to repair. It seems to have been held that such an undertaking was to be implied from the nature of the tenancy, even if it had not been expressly given. But the result of holding that the landlord, for want of notice, had not broken his contract, was to exclude the right of the plaintiff to recover, and the judgment of Day, J., in her favour was reversed. From the point of view of the public the result is unsatisfactory. The tenant, who ought to be aware of the defect, is not liable, and the landlord escapes liability because the tenant does not call his attention to the defect. Between the two a stranger is left without remedy.

A third point was raised in the judgment of the Court of Appeal, whether a person who was not a party to the contract to repair was entitled to sue in respect of the consequences of a breach of the contract. Under the circumstances it was not necessary to decide it, and it appears to have been treated as an open question. The cases above referred to do not, however, suggest that there is any doubt as to the right of a stranger to He does not sue for the breach of contract, but for the tort involved in the premises being allowed to be in a dangerous state. Unless such state is due to a concealed defect some person should be liable, either the landlord or the tenant. The tenant's prima facie

sue.

liability is shifted to the landlord if the latter agreed to repair; but though the agreement is the foundation for the landlord's liability, it is not on the agreement that a stranger sues, and it is no objection that there has been no breach as against him. Such, at least, seems to have been assumed to be the rule hitherto.-Solicitors Journal.

RIGHTS OF JUNIOR COUNSEL.

At the conclusion of the argument in O'Reilly v Meehan in the Queen's Bench Division some time ago, the court alluded to the fact that junior counsel had not opened the case stated. Mr. Justice Gibson said that the right to do so was one of the few remaining privileges of the junior Bar, and that he himself when a junior always looked forward to exercising that right with pleasure. Mr. Healy, Q.C., who had opened the case, did not attempt to question the existence of the privilege. He explained that by arrangement with his colleague and as a matter of convenience he had addressed the court first. The point is well settled by authority. In Keavens v. McCamish (7 Ir. L. T. Rep. 74) it was laid down that in an argument on a case stated a junior counsel is absolutely necessary. A similar point was raised in Reg. v. Brophy (9 Ir. C. L. Rep. 11). In Doyle v. Dublin, Wicklow, and Wexford Railway Company (12 Ir. L. T. Rep. 28) Mr. D. B. Sullivan, who was then a junior, insisted on his right to open the case stated, and cited authorities. Mr. Butt, Q.C., who led him, suggested that some definite rule should be laid down by the court on the point. Although the court did not accede to the suggestion, Mr. Sullivan opened the argument, and the right to do so by junior counsel has been tacitly admitted by both Bench and Bar ever since.-Law Times.

NOTES OF ENGLISH CASES.

(From the Law Journal.)

HOUSE OF LORDS.

THE RUABON STEAMSHIP COMPANY . THE LONDON
ASSURANCE.

Dec. 14.-Insurance (Marine)—Ship docked for underwriters' repairs-Survey while in dock for re-classification at Lloyd's-Expenses of taking ship into and out of dock-Dock dues-No apportionment between shipowners and underwriters.

Where a ship has been placed in dock for the purpose of repairs for which the underwriters are liable, and while she is in dock the owner takes advantage of the opportunity to have her surveyed for re-classification at Lloyd's, the owner cannot be called upon to bear part of the expenses involved in the docking of the vessel and keeping her there while the repairs are being executed.

Their LORDSHIPS (The Earl of Halsbury, L.C., Lord Macnaghten, Lord Morris, Lord Davey, Lord Brampton, and Lord Robertson), after consideration, reversed the decision of the Court of Appeal (67 Law J. Rep. Q. B. 548; L. R. (1898) 1 Q. B. 722).

The Marine Insurance Company v. The China TransPacific Company, 56 Law J. Rep. Q. B. 100; L. R. 11 App. Cas. 513, distinguished.

Fox v. THE "STAR" NEWSPAPER.

Dec. 15.-Practice-Nonsuit-Discontinuance --Rules of Supreme Court, 1875, Order XLI., rule 6; 1883, Order XXVI., rule 1.

A plaintiff has no longer the old common-law right of election to be nonsuited at the trial, such a right being contrary to Order XXVI., rule 1, of 1883, by which a plaintiff cannot discontinue his action at that stage without the leave of the Court or a judge.

Their LORDSHIPS (The Earl of Halsbury, L.C., Lord Macnaghten, Lord Morris, and Lord Shand), after consideration, affirmed the decision of the Court of Appeal (67 Law J. Rep. 454; L. R. (1898) 1 Q. B. 636).

DE NICOLS. CURLIER AND OTHERS.

Dec. 15.-Domicil-Marriage according to French law of community of goods-Subsequent English domicil— Movable property-Will in English form-Conflict of laws.

Where a domiciled Frenchman and Frenchwoman have married in France without entering into any marriage contract, and therefore subject to the statutory contract of community of goods, and have afterwards acquired an English domicil, their respective rights as to movable property will be governed by the law of the matrimonial domicil, which will override the provisions of a will made in the English form by the husband.

Their LORDSHIPS (The Earl of Halsbury, L.C., Lord Macnaghten, Lord Morris, Lord Shand, and Lord Brampton), after consideration, reversed the decision of the Court of Appeal, 67 Law J. Rep. Chanc. 419; L. R. (1898) 2 Chanc. 60, and restored that of Kekewich, J., 67 Law J. Rep. Chanc. 274; L. R. (1898) 1 Chanc. 403.

SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.

(Before SMITH, COLLINS, and WILLIAMS, L.JJ.) THE LONDON AND WESTMINSTER BANK (LIM.) v. THE INLAND REVENUE COMMISSIONERS.

Dec. 6, 16.-Revenue-Stamp duty-Receipt-Receipt on scrip certificate for instalment due thereon-Stamp

Appeal from the decision of a Divisional Court (Day, J., and Lawrance, J.) on a special case stated by the Commissioners of Inland Revenue (reported 68 Law J. Rep. Q. B. 787). The Divisional Court held in favour of the bank that a receipt upon a duly stamped scrip certificate for a sum of stock acknowledging an instalment due thereon is within exemption (11) under tit. "Receipt" in the First Schedule to the Stamp Act, 1891, and is therefore not liable to Stamp duty. The Commissioners appealed.

Their LORDSHIPS dismissed the appeal.

(Before LINDLEY, M.R., and ROMER, L.J.) FRANKENBURG v. THE GREAT HORSELESS CARRIAGE COMPANY (LIM.).

Dec. 19.-Practice-Parties--Joinder of defendantsCause of action-Separate remedies-Rules of the Supreme Court, 1883, Order XVI., rules 4, 5; Order XVIII., rules 1, 8, 9.

Appeal from a decision of Channell, J., in chambers. The action was brought against the company and a number of persons who were alleged to have been promoters of the company and directors at the time of the issue of the prospectus, and also against certain persons who were the executors of a deceased promoter and director, to have the allotment of shares in the company to the plaintiff cancelled, and the money he had paid in respect thereof returned, and for damages. The ground of the action was that the prospectus, on the faith of which the plaintiff applied for shares, contained misre. presentations and concealment of material facts; and it was alleged that the misrepresentations and concealments were knowingly and fraudulently made by the promoters and directors, and that they had no reasonable ground to believe, and did not believe, the statements contained in the prospectus.

The master dismissed the action, on the ground that separate causes of action were joined against separate defendants. Channell, J., upheld that order, unless the plaintiff amended by striking out the names of the company and of the executors of the deceased director as defendants. The plaintiff appealed.

Their LORDSHIPS allowed the appeal. They said that there was only one cause of action against all the defendants. Injury was alleged to have been caused to the plaintiff by the prospectus, which was issued by the company and the directors, and though the plaintiff might have different remedies against the different defendants, the cause of action was the same. As regards the executors, there was a case to be tried, and the action ought not to be dismissed in a summary manner.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

(Before NORTH J.)

In re THE STAMFORD BANKING COMPANY AND T. KNIGHT.

Dec. 6.- Vendor and purchaser-Abstract-Document forming part of title-Recital.

This was a summons taken out by a purchaser under the Vendors and Purchasers Act for a declaration that he was entitled to a proper abstract of a deed dated December 2, 1890. The purchaser had bought two leasehold houses at an auction, under conditions of sale which provided that the vendors should deliver to the purchaser an abstract of title to the property bought by him commencing with the leases under which it was held. The vendors delivered an abstract which was admitted to be sufficient up to and including a deed of February 26, 1890, by which the leasehold houses were assigned to Pugh and Phillips. The next deed abstracted was an

assignment to the vendors by the trustee in bankruptcy of Pugh. This deed recited that by an assignment dated December 2, 1890, Phillips assigned to Pugh all his estate and interest in property pertaining to the partnership lately subsisting between himself and Pugh (of which the said leasehold houses formed a part). The purchaser delivered requisitions requiring the vendors to furnish an abstract-in-chief of the deed of December 2, 1890. The vendors refused to do so except at the purchaser's expense. The purchaser then took out this

summons.

NORTH, J., said that the vendor was bound to deliver at his own expense a proper abstract of all documents forming part of the title, and that his duty was not discharged by furnishing an abstract of a recital. There must be a declaration that the abstract was insufficient, and the vendor must pay the cost of the summons.

SERVANTS' CHARACTERS.

Is a master who receives the character of a servant from the latter's former employer under any legal obli gation not to disclose the same to the servant? No, says Lord Young in the recent Scotch case of Mushets v. Mackenzie (Court of Session Cases, 5th series, vol. 1, p. 756), not even where the character has been given in a communication marked " private and confidential." Ordinary considerations of good sense and honour and good taste," he said, "generally indicate that such things should not be communicated, but if they are communicated that does not give ground for an action in any circumstances which I can conceive; and I do not think that even considerations of good sense and good taste necessarily forbid the answers from being revealed. That depends on the nature of the questions and the nature of the answers to these questions." This dictum, for it was nothing more, hardly commends itself either as good sense or good law, and certainly Lord Moncreiff, in the same case, does not lend it his support, for he says there may be cases in which, if a person who stands in a confidential relation to another commits a breach of confidence in consequence of which injury results to the latter, the former will be liable in reparation if damages are relevantly averred and instructed." The case in which these remarks were made was a somewhat peculiar one. A man called Morrison had been in the employment of Mushets Limited as a moulder, and afterwards entered the service of Mackenzie Brothers. The latter firm sent a memorandum marked "private and confidential" to Mushets, asking answers to specific questions as to Morrison's service with them. Mushets replied to these queries, the last of which was-"6. General Remarks," to which the answer was as follows:-"He went on strike, leaving us without giving sufficient notice. It is unfair to us if he is in your employment." In consequence of this, Mackenzie Brothers dismissed Morrison, communicating to him the answers to the queries referred to. Morrison thereupon sued Mushets for libel, which action was dismissed with costs. In that action Mushets had incurred costs over and above what they recovered from Morrison, and for these additional costs they sought to make Mackenzie Brothers liable, alleging that the latter were responsible for the whole proceedings by the breach of the contract or guarantee of confidentiality in the memorandum. The court had no hesitation in holding the action not maintainable. The Lord Justice Clerk held that such costs could not be recovered as damages from a person whose conduct had indirectly led to the action. Lord Young agreed, but held also that there was no obligation on Mackenzie Brothers not to disclose the answers they had received; while Lord Moncreiff preferred to put his decision on the ground that Mushets had practically asked Mackenzie Brothers to dismiss Morrison, which they could not be expected to do without giving a reason, and that this deprived the answers of any confidential character they might otherwise possess.-Law Times.

CURIOUS CASES.

MORE UNSETTLEMENTS.

Once again the Courts have had to consider the validity of a settlement made on a so-called marriage between a man and his deceased wife's sister, and the decision of Mr. Justice North, in Phillips v. Probyn (18 L. N., p. 173), makes it more abundantly clear than ever that the drawing of such a settlement is as ticklish a job as the marriage itself, and demands the greatest care on the part of the drawer if he is to carry out the intention of the settlor and insure the validity of the settlement. Unless the drawer gives his best attention to it, the settlement will probably be void, and not worth the parchment on which it is engrossed, if ever it comes within the range of view of the Chancery Division.

In commenting on the case of Neal v. Neal (L. N., Vol. XVII. p. 370), we pointed out that the effect of the decision in that case is to make void a settlement made on a void marriage, if the settlement contains the usual first trust for the settlor until the solemnization of the intended marriage; as the marriage in contemplation is not a marriage and can therefore never be solemnized, the trusts to take effect after the solemnization of the marriage can never arise, and the trustees hold the property on the first trust. From this case the drawer of such a settlement deduces his first maxim, Don't draw it in the usual form. But if he avoids this pitfall there is another waiting for him to fall into. If he forgets for a moment that the law regards such a marriage as illegal, and anything done in consideration of it as done for an illegal consideration, and therefore void, he will be lost. It is absolutely necessary not to say a word about the consideration, for if the consideration appear on the face of the deed, and the deed be brought to the notice of the Court, good-bye to the value of the settlement; the morals of the Court would be shocked, and it would be bound to show its abhorrence of such marriages by declaring the settlement of no effect. But if, as in Ayerst v. Jenkins (L. R. 16 Eq. 275), the conveyancer has dealt subtilely, and has merely expressed the settlement to have been made from a desire to make provision for the lady, or for some other equally harmless consideration, the Court may uphold the settlement. It is by no means certain that even then it will not be void; but it is clear that in certain circumstances it may be upheld. As an illustration of a settlement being upheld may be taken Ayerst v. Jenkins, in which case the settlement on its face was merely voluntary; there was not a hint that it was made for an illegal consideration, though this was apparent from the evidence, and Lord Selborne refused to interfere with it on the application of the representative of the deceased settlor, basing his refusal mainly on the ground that the settlor himself could not have set the deed aside because

in pari delicto melior est conditio possidentis, and the settlor's representative could stand in no better position than the settlor himself, and was estopped from setting up the illegality of the consideration.

The doctrine of estoppel, as laid down in Ayerst v. Jenkins, was brought up in aid of a similar settlement in Phillips v. Probyn, but to no purpose. Though similar, however, there was this important distinction between the settlements in the two cases-viz., that in the former there was no reference to the intended marriage, whereas the illegal consideration appeared clearly on the face of the latter. But this was not the only reason why Mr. Justice North declared the settlement void; his decision was also based on another distinction from the case of Ayerst v. Jenkins-viz., that the doctrine of estoppel did not apply, since the application was made by the trustees of the settlement, and not by a person claiming under the settlor in derogation of the settlement; the trustees simply

asked whether they were to pay the rents and profits of
the settled property to the so-called widow of the
settlor in conformity with the trusts of the instrument,
or whether, on the ground that the marriage was not
a legal marriage, they should pay them to the person
who would have been entitled if the settlement had
never been made; and Mr. Justice North held that they
were entitled to the direction of the Court, and the
Court was bound to declare that, the settlement being
made for an illegal consideration, the trusts of it
were void, and to direct the trustees not to pay the
rents and profits to the settlor's widow.

The result of this decision is certainly curious.
The settlor himself cannot apply to have the settle-
ment set aside, nor can any person claiming under
him; but the trustees of the settlement, the very
persons whom the settlor has appointed for the pro-
tection of the beneficiaries under the settlement, can
apply and obtain the Court's direction not to carry
out the trusts. And the result of such a direction
is, that the settlor's representatives obtain the property
which they could not have obtained if they had
made application themselves; and the settlor's
widow, if still alive, is deprived of the pro-
vision made for her on the settlor's death, which
is, as a rule, the only event in which she obtains
any interest in the property. For her the result is
as hard as it is curious; she is the "awful example:
made use of by the Court to show its righteous
horror of irregular marriages, and though in her case the
sin is sinned and all is past, and no action of the
Court can undo it, she must be punished in order that
public morals may be vindicated and the high moral
reputation of the Court be upheld.-Law Notes.

Sir Algernon West, in his Recollections just issued,
tells the following stories of Lord Westbury. One of
them is rather an old "chestnut :" "On his becoming
Solicitor-General in Lord Palmerston's Government, he
was called upon by the committee of the Conservative
Club to resign his membership. Before obeying, he
presented himself and addressed them. He had a small
and, if I may use the expression, a mincing or finicking
voice. Someone at the end of the room called out:
'Speak up!' I should have thought,' he said, 'that
the ears of anyone in this committee were long enough
to have heard me.' A deputation came to see him as
Attorney-General, and, having heard his advice, their
spokesman said they would like to retire to make up
their minds. He replied: Certainly, retire from this
room, and when you have made up what you are pleased
to call your minds you will return, but you will not
find me here.' When the horses in his carriage bolted,
he shouted to his coachman: 'Drive into something
cheap.'"

BRIEF NOTES OF RECENT IRISH DECISIONS.
Compiled by H. M. FITZGIBBON, Barrister-at-Law.
PRACTICE.-The Court granted a motion on behalf of
the plaintiff, suing as sole surviving trustee of a
marriage settlement, for leave to join in the writ of
summons, claims for the recovery of a house, shop, and
premises, together with mesne profits, and also for
detinue of certain title-deeds affecting the premises
claimed (Q. B.) Murphy v. M'Hugh & Co. Dec. 2.
Counsel: D. M. Steen. (See Barrett v. M'Carthy, 12 Ir.
L. T. & S. J., p. 242; Anon., 12 Ir. L. T. & S. J., p. 36.)

CORRESPONDENCE.

INCOME TAX REPAYMENTS.

TO THE EDITOR OF THE IRISH LAW TIMES.

SIR, -As most of your readers who are engaged in
business are now ascertaining the amount of their pro-
fits for the year 1899, will you allow us to remind them
that, if such profits show a diminution, they may be
entitled to the repayment of a considerable portion of
the Income Tax paid in respect of the same. Many
submit to overcharges, having failed on previous
occasions to get their assessments reduced. In most
cases the reason why they have failed is that they have
not furnished proper accounts, while many have neglected
to keep any accounts of their business transactions. If
proper accounts be kept, or even if a proper cash account
be presented (which is very simple by using the "Tax-
payers' Cash Book"), there is but little difficulty in
establishing a claim.

Thousands of people pay taxes for which they are not
liable, more particularly those whose incomes are derived
from property and investments where tax is deducted
before being paid to the recipients, or when dividends
are paid "free of Income Tax." Abatements are now
allowed in cases where the total income does not exceed
£700, as follows:-Incomes of £160 exempt; £400,
abatement £160; £500, abatement £150; £600, abate-
ment £120; £700, abatement £70.

Where the income of the current financial year has
all been received, claims can, in many cases, now be
made for four years, and the sum repayable might, in
the case of private incomes alone, exceed £42, to say
nothing of tax allowed in respect of life insurance
premiums, even when the income exceeds £700. We
shall be glad to advise any of your readers, gratuitously,
whether they can make a claim for repayment, if they
send us full particulars of their incomes and a stamped
addressed envelope.

Yours faithfully,

THE INCOME TAX ADJUSTMENT AGENCY.

12 & 13 Poultry, London, E.C.,
Dec. 28th, 1899.

COURT PAPERS.