Page images
PDF
EPUB

July 15, 1911.]

estates.

THE LAW TIMES.

On the terms of the will the pecuniary legacies and annuities must bear a proportionate part of estate duty, but were not liable to succession duty.

[Re Sir R. W. H. Palmer; Leventhorpe v. Palmer. Ch. Div.: Eve, J. July 6.-Counsel: Dighton Pollock; C. Turner; J. W. F. Beaumont, Tyldesley Jones; P. Stokes; Ing pen, K.C. and AustenCartmell, Jessel, K.C. and G. Timins; Lloyd-Greame; P. O. Lawrence, K.C. and Ashworth James. Solicitors: 8. Jacomb-Hood; Johnstons, Long, and Co.; Nicholson, Patterson, and Freeland; Hills, Godfrey, and Halsey.]

Will-Settled Land-Licensed Premises-Non-renewal of LicenceCompensation-Capital or Income-Licensing Act 1904 (4 Edw. 7, c. 23), 8. 2.-By his will dated the 17th Feb. 1874, J. B. gave the whole of his estate and effects to his wife, H. B. (except certain bequests) for her life, and after her death "to any child or children of mine that may survive her, and should there be none or any who have died under the age of twenty-one years or after that age leaving no will, then to J. D., the brother of my said wife, whom I hereby After the decease of appoint and constitute as my heir. my said dear wife the said effects bequeathed to her by this will shall be given to such of her relations as she may appoint in writing for that purpose, if resident in Great Britain." The testator died on the 27th Feb. 1874 and his will was duly proved. His wife, H. B., subsequently married again. By her will dated the of 18th June 1907 in exercise of the above-mentioned power appointment contained in the will of the testator she appointed all her interest under the said will upon trust as to one-third to her daughter H. L., as to one-third to her sɔn E. D., and as to onethird to her son L. D. Upon the 6th Feb. 1911 the testator's wife, Part of the now H. D., died, and her will was duly proved. property of the testator consisted of a licensed freehold public house known as "the Queen," situate at P. in the county of M. In the year 1907 the licence was extinguished and the sum of £450 was paid to H. D. as compensation moneys in respect of the extinction of the licence. It having been decided by the court that H. D. was only tenant for life of the real estate under the will of the testator, the question was raised as to whether she or the persons entitled in remainder could claim the £450 compensation above mentioned. Held, that the amount in question must be invested and the income only paid to the tenant for life.

[Re Bladon; Dando v. Porter. Ch. Div.: Neville, J. July 6.Counsel. W. H. Gover; Wheeler. Solicitors: W. J. and F. H. Tremellen, for Henry Thomas, Cardiff; Kinch and Richardson, for Lyndon, Moure, and Cooper, Newport, Mon.]

KING'S BENCH DIVISION.

Rating-Metropolis — Reduction in Value of Premises - Provisional Valuation List-New Quinquennial Valuation List-"List subsequently made"-Valuation (Metropolis) Act 1869 (32 & 33 Vict. c. 67), s. 47, sub-8. 8.-Action by P, the occupier of certain licensed premises in H., against the H. Borough Council for a declaration that the rateable value shown in respect of the premises should have been that appearing in afnew quinquennial valuation list that came into operation on the 6th April 1911, and for the return of a sum overpaid for rates upon a higher assessment stated in a provisional list coming into operation on the 30th June 1910. The H. Borough Council contended that the higher assessment contained in the provisional list was still in force, the quinquennial valuation list having been made before it, on the 30th May, 1910, when the defendants' seal was affixed to it. Held, that the meaning of the words "list subsequently made," in sub-s. 8 of sect. 47 of the Valuation (Metropolis) Act 1869, meant a list which had become operative as the sum of a series of actions by a number of different persons, and was not "made" when the seal of the defendants was affixed to it at the earlier date; that the plaintiff was entitled to the declaration claimed by him, to the repayment of the sum of £34 16s. overpaid by him, and to the costs of the action.

[Parrish v. Hackney Borough Council. K. B. Div.: Warrington, J., sitting as an additional judge. July 11.-Counsel: Ryde, K C. and Konstam; C. A. Russell, K.C. and J. M. Stone. Solicitors: Godden, Son, and Holme; W. A. Williams.]

can now be FIXED INCOMES.-Houses and Residential Flats Furnished on a new system of Deferred Payments especially adapted for those with fixed incomes who do not wish to disturb investments. Selection from the largest stock in the world. Everything legibly marked in plain figures. Maple and Co. Ltd., Tottenham Courtroad, London, W.-[ADVT.]

NOTICE OF REMOVAL.-The Sanitary Engineering Company. Domestic Sanitary Engineers, after thirty-six years occupation of 65, Victoria-street, have removed their offices to No. 2, Army and Victoria street, Westminster of (corner Navy-mansione, 115, Francis-street). 'Phone: Westminster 316. Telegrams: "Sanitation," London.-[ADVT.]

NOTICE OF REMOVAL -The well-known firm of Furniture Dealers, M. S. and T. Willson, respectfully beg to announce to the Profession that they have removed from 68, Great Queen-street, Lincoln's-inn, where they have been established for 128 years, to more commodious and extensive premises, 68, Long-acre, W.C. A visit of inspection is cordially invited.-[ADVT.]

LAW LIBRARY.

The Green Bag for July contains: Judge Rodenbeck and the Proposed Reform of Procedure in New York, and The Interest and Value of the Study of Legal Biography, by the Hon. Hampton L. Carson.

The Canadian Law Times for June contains: Misdescriptions in Wills, by F. P. Betts, K. C.; French Civil Law under British Rule, by P. E. Lamarche, LL M.; The Declaration of London; Government by Commission, by W. F. Chapman; Corroboration of the Evidence of an Accomplice; and Liquidated Damages and Estoppel by Contract, by Jos. H. Drake.

[blocks in formation]

THE list of Bills now before the House of Commons is eloquent testimony to the stress of modern Parliamentary life. There were some 250 Bills brought in dealing with all manner of subjects, and of Turning to these forty-three are starred as Government measures. the latter class first we find that the Royal Assent has been given to the Bill relating to aerial navigation, the Army (annual), two Consolidated Fund Bills, the Perjury Bill, the Revenue Bill, while the Parliament Bill has, as we all know, passed the Commons, as has also Mr. BIRRELL'S measure affecting Irish public libraries. On the other hand, Mr. SYDNEY BUXTON has withdrawn his Bill on merchant shipping (stevedores and trimmers), and Mr. MONTAGUE has adopted the same course with his Government of India Act Amendment Bill. Other important Government measures are well forward and no great difficulty is expected to arise. With regard to the two hundred odd Bills of an unofficial character, there is small hope for any great measure of success. Already some six have been withdrawn, and nearly one hundred have been dropped. The position of the residue is extremely precarious, although there are hopes for the Law Society's Married Women's Property Bill, set down for second reading on the 17th July. Amongst this widespread loss, it is possible to regret that certain minor measures, championed by private members, calculated to amend some existing legal defects should not be salved. In the House of Lords there are several measures which may be pushed forward. The County Courts Bill has been put down for recommitment and there will shortly be debates on the Thrift and Credit Societies Bill, the Protection of Animals Bill, and measures affecting small ownership, small holdings, rights of way, education (school attendance), trustees, lunacy, employment of children, ard other matters of weighty interest. This session is likely therefore to end with little lessening in the legislative output, and looking to the complexity of some of the measures now before the country the practising lawyer will not be able to pass by his future volume of statutes as calling for no careful study. The National Insurance Bill, if passed, will, in itself, entail several hours of patient investiga! tion and thought. A persual of the Bill, in its present form, justifies the hope that it may be deferred until next year, so as to afford time for quiet consideration on behalf of all the interests involved.

MANY persons nowadays take out policies of insurance covering the risk of larceny. This is always a desirable adjunct to the common policies covering fire and burglary, but it should be carefully noted whether the company is not protecting itself against the very considerable risk attaching to thefts by the insured's own servants. A case recently before the writer suggests that potential insurers should elicit what information the company would require in the event of his making a claim in respect of a loss. The facts showed that a certain ornament of no special value had been deposited in a room used for boot-cleaning, storage of logs for fires, and other The door was always open, for it was miscellaneous purposes. immediately opposite that of the kitchen, and access to it was continual by the servants. Close to was the back door, frequently left open for ventilation and for the convenience of giving orders to the tradesmen. The article in question disappeared, but wis not missed for some time after it had been deposited until The house having been thoroughly suddenly needed for use. concluded that some searched and every inquiry made, it was

person had entered and stolen it. On a claim being made, the insurance company demanded a solemn declaration that all the doors and windows were securely fastened; the name of the person effecting the theft; all that was known of the thief; the number of days and nights that the premises had been left unoccupied since the insurance was effected or last renewed; and satisfactory proof that the article had been stolen and not merely mislaid. Then followed a demand for a detailed description of the article, when and where bought, net cost, actual value at time of loss after necessary allowances for wear and tear, and so forth. Other questions as to the exact position of the locality of the theft in relation to the house, reasonable enough, perhaps, to ensure that it was not some detached outbuilding, followed, as did also questions as to the existence of other policies of insurance in other companies. It is not surprising to find that this sort of thing, with the endless and annoying correspondence which can be involved by a company wishful to make a claim as difficult as posssible, makes persons unwilling to pay the heavy premiums charged.

PARLIAMENTARY SUMMARY.

64

MR. PICKERSGILL, in the debate in the House of Commons on the second reading of the Perjury Bill, made the following comment on the exclusion of Ireland from the Bill: "We can," he said, perfectly understand that Scotland must be excluded, because the criminal law of Scotland varies in many respects from the criminal law of Ireland. But I cannot see any good reason why Ireland should be excluded from the Bill. Most people know that the oriminal law in Ireland is substantially identical with the criminal law of this country." It is true that the foundations of the English and the Irish criminal law are identical. It is, however, no exaggeration to say that the differences in the English and Irish criminal law systems and in their administration is wide and at present irreconcilable unless by comprehensive legislation for that purpose. To give a few illustrations. In Ireland in criminal cases neither the accused nor the husband or wife of the accused are competent witnesses. In Ireland there is no appeal from the finding of a jury on a question of fact, and appeals on matters of law are only allowable if the judge presiding at the trial

reserves

in order to retire from Parliament or to contest another constituency. These offices are held during pleasure, and merely operate to vacate the seat. The earliest use of a royal monor for this purpose was in 1740, and the stewardship of the Chiltern Hundreds was thus utilised for the first time in 1751. The circuitous fashion by which a member is enabled to retire from the House of Commons has not infrequently been the subject of stricture and comment, and efforts have been made, hitherto without success, to enable retirement from the House of Commons to be effected directly instead of indirectly. In 1778 Mr. George Greville moved for leave to bring in a Bill enabling members to vacate their seats by signifying their wish to the Speaker under certain restrictions, but the motion was negatived by 173 to 130. Mr. Gladstone, in the House of Commons on the 30th June 1880, said:

It is one of the curious anomalies of our system that a Minister, one of the advisers of the Crown, should have control over the only ordinary method by which a member of Parliament can vacate his I am far from thinking it is a good system. I am decidedly of opinion that some better system-better in principle, and perhaps in practice-might be found.

seat.

On the same day Sir Henry Drummond Woolf announced his intention of moving for the appointment of a Select Committee to inquire into the possibility of altering the existing procedure, but no definite action has been taken in this direction, although so far back as the 5th May 1891 a Bill was prepared and brought in by Sir Henry James (Lord James of Hereford), the late Sir John Mowbray, Q.C., Mr. Dillwyn, and the present Prime Minister, to enable members of the House of Commons to resign their seats by applying in a prescribed form to the Speaker, who on the receipt of the application would inform the House of Commons of its having been made. The Bill, moreover, provided that after the expira. tion of fourteen days from the date on which the application had been communicated to the House by the Speaker, if the application had not been in the meantime withdrawn, it should be lawful for the House of Commons to grant or refuse the application as it thought fit. On the 31st Jan. 1893 Sir William Harcourt, speaking as Chancellor of the Exchequer in whose gift these nominal offices are, thus characterised the anomaly of the method by which alone a seat in the House of Commons can be resigned:

The whole proceeding is merely a constitutional fiction equivalent to a resignation. It is certainly an anomalous and inconvenient A former member of the House, Sir H. Drummond Wolff, in 1880 intimated that he would move for a committee to alter the system. I am sorry that he did not do so, because I think it would be very desirable that another form of resignation should be established by this House.

fiction. the point for the consideration of the Court for Crown Cases Reserved. In Ireland a whole code of White boy offences for which the punishment in some cases is penal servitude for life are made misdemeanours in order to check the power of peremptory challenges of jurors by the prisoner. In Ireland in cases of treason there are only twenty peremptory challenges of jurors by the accused, whereas in Eogland there are thirty-five. In Ireland, in criminal cases, the challenge of jurors, or rather the ordering of jurors to stand by, is as usual an incident in criminal proceedings as it is unusual in England. In Ireland, under the provisions of the Criminal Law and Procedure (Ireland) Act 1887 the Lord Lieutenant by Order in Council can suspend trial by jury in certain cases including conspiracy and sub. stitute therefor trial by two resident magistrates removeable from office at the pleasure of the Crown. In Ireland every Crown counsel, whether evidence be produced or not on behalf of the Crown has, and invariably exercises, as representing the Attorney-General, the right of reply. In England the lay officers of the Crown alone when prosecuting in person are allowed the privilege of the last word when no evidence for the defence has been produced. In England there is in every case an appeal from the decision of magistrates in petty sessions, whereas in Ireland magistrates are allowed to impose fines and inflict terms of imprisonment for which there is no appeal and these magistrates frequently refuse to increase the amount of the fine or the length of the imprisonment in order to enable an appeal to be taken from their decisions.

THE appointments on the 5th inst. of Messrs. Muldoon and Morton Frewen to the stewardships of the Chiltern Hundreds and of the Manor of Northstead respectively, in order to vacate their seats in the House of Commons, remind us that it is a settled principle of Parliamentary law that a member after he has been chosen cannot relinquish his seat. Death or expulsion were originally the only causes, apart from legal disqualification, by which a member's seat could be affected. This most inconvenient rule is a relic of the days when the local gentry were compelled to serve in Parliament. The disability attaching to office under the provisions of the Place Act is thus of great practical importance. Certain old offices of nominal value, of which there were at one time eight-two only now survive -are granted as of course to members who wish to resign their seats

In the House of Lords, on the 6th inst., the Earl of Halsbury asked the Lord Chancellor whether he could give the House any information as to the steps which His Majesty's Government had in contemplation for utilising the labours of the Royal Commission on the Land Transfer Acts, and whether their recommendations for the improvement of the Land Registry would be carried out with a view to the extension of the system.-The Lord Chancellor : I am glad that this question has been put, and I think it is very desirable that there should be a discussion in this House upon the report of the Royal Commission. The inquiry has been one of great labour by many distinguished persons, with a very satisfactory result. But considering the number of misstatements which have appeared in the public Press on this subject it is very desirable that we should have some discussion on it, and I hope that the noble earl will take steps next week to recommend public consideration of the question.-The Earl of Halsbury said he would take an early opportunity to raise the question.

The committee stage of the Parliament Bill was concluded.

In the House of Commons, Mr. D. Mason asked the Secretary of State for Foreign Affairs whether, in view of the fact that an agree ment of arbitration between Great Britain and the United States of America would require the deliberate and deciding sanction of Parlia ment, he would inform the House when such an agreement was likely to be ready for the sanction of Parliament.-Sir E. Grey: I believe the two Governments to be now in substantial agreement about the details of the draft treaty, and that there is every prospect of its being signed very soon. It will then be presented to Parliament before ratification has taken place.

In the House of Lords on Monday the Commons' amendments to the Municipal Elections Bill were considered. Lord Farquhar explained that this Bill was passed through the House and sent to the House of Commons on the 23rd Feb. last. As passed by the House of Lords it consisted of two clauses. The first clause applied to municipal elections the provisions of the Corrupt and Illegal Practices Act 1895, which at present applied only to Parliamentary elections. The Bill received a second reading in the House of Commons without a division, and was referred to a Standing Committee. Objection was taken by a member of the committee to the form of Clause 1 as

affecting legislation by reference to former Acts of Parliament. Thereu by general consent the clause as set out at length in the memorandum in the Bill was substituted for the o'ause as it originally stood. That was the amendment which was before the House. It was an amendment in form and not in substance, and probably the House would agree that it was an improvement to set out at length the full legislative effect of the Bill. It was hoped, therefore, that the House would agree with the Commons' amendment. The Lord Chancellor said that the House of Commons had followed the example of their Lordships in setting out at full length what it was desired to do, and it was impossible not to commend the practice. He hoped that it would be observed on both sides. The amendment was agreed with.

In the House of Commons Mr. Cassel asked the Prime Minister whether the ratification of the Declaration of London would be delayed until the House of Lords had had the opportunity of accepting or rejecting the Naval Prize Bill, without which the Convention establishing the International Court could not be carried into effect. Mr. Asquith It would obviously be convenient, if possible, to defer the ratification of the Declaration until the Naval Prize Bill has received the Royal Assent. I see no ground for doubting that that event will occur within a reasonable time. In these circumstances the Declaration will not be formally ratified until the other House has had an opportunity of considering the Naval Prize Bill. But beyond that I cannot go.

In the House of Commons on Tuesday a Bill to amend the Criminal Law Amendment Acts 1880 to 1885 was brought in by Mr. Crooks (Woolwich, Lab) and read a first time.

The consideration of the Copyright Bill was resumed by the Standing Committee of the House of Commons. An agreement was arrived at on the subject of university copyright privileges, and a new clause moved by Mr. Buxton, dealing with the question of copyright in musical compositions and mechanical reproductions, was read a second time. Its further consideration was adjourned.

In the House of Lords on Wednesday their Lordships having gone into committee, with Lord Balfour of Burleigh in the chair, on the Bill to amend the law relating to County Courts, the Earl of Halsbury moved to omit clause 1, which, with the exception of Chancery, Probate, Divorce, Admiralty, and certain other classes of action, would give to County Courts unlimited jurisdiction. While be entirely approved of the other provisions of the Bill in the interests of law reform he was entirely opposed to this clause, which would defeat the whole object of the Act of 1888 and be most mischievous in its effect on the poorer class of litigants who, in the existing state of things, were subjected to frequent adjournments and consequent expense by reason of the delay resulting from the great pressure of work in the County Courts. The only ground on which this proposal could be justified was that it would diminish the number of oases in the High Court, but the appointment of two additional judges had obviated delay in the superior courts, and such an extension of the jurisdiction of the County Courts as was proposed not only only would be injurious to litigants of the poorer classes, but would be detrimental to the interests of the junior Bar.The Lord Chancellor said his noble and learned friend seemed to be under the misapprehension that the clause provided that all actions should be commenced in the County Court. Such was not the case. At the present time County Courts had jurisdiction in all cases in which the amount in dispute did not exceed £100, and by agreement between the parties they could try cases where the amount involved exceeded £100. All that the Bill would do would be to allow plaintiffs to commence actions for any amount in the County Court subject to the unqualified right on the part of defendants to have them removed to the High Court if they so desired. The main object in view was the saving of the greater expense in which litigants were involved by going to the High Court. The majority of solicitors were in favour of the Bill, and he was certain that so liberal a profession as the Bar would not object. It would be of value to the younger members of the Bar, as it would give them an opportunity of using these small cases for the purpose of learning their profession. With regard to the complaint that there was already great pressure in the County Courts during the time he had been Lord Chancellor he had only received two complaints from the fifty-five County Court judges, and in neither of these cases was there any ground for the complaint. On an average the County Court judges worked about 153 days a year, and if any reasonable complaint of overwork were made the Lord Chancellor had power to appoint additional judges. The noble Earl had said that the poor people were entitled to have their legal business tried by a judge instead of by a registrar. Under the Bill it was proposed to extend cases of £2 by consent to cases of £5 by consent to be tried by a registrar. The Bill was brought in so that the poor might have a chance of cheap litigation.-Lord Robson said that the point was whether the change was necessary for the public convenience. So far as the High Court was concerned the appointment of the two extra judges had relieved the congestion, and the work was now being done with a degree of rapidity and efficiency which was rare in the annals of judicial administration. The High Court could do all the work it had got, and there was no reason why work should be transferred to tribunals which, in many cases, were now overworked. Lord Robson quoted a case in which 200 jndgment summonses had been disposed of in 89 many minutes. That might be pure, prompt, and cheap, but he was inclined to think that some of those cases were deserving of a little more consideration than they apparently received.

Lord Alverstone took exception to the proposal which, in his view, so far from being in the interests of economy. would tend to increase costs in the first instance and also the number of appeals. He believed that the Lord Chancellor's plan of having special sittings of the County Courts would strike at the root of the whole system. In the large towns, where the County Court judges were already fully occupied, the necessity would inevitably arise from the appointment of additional judges) if this alteration of the law was carried into effect.-Lord Gorell strongly supported the proposed extension of County Court jurisdiction, which was first recommended forty years ago by the Judicature Commission.-Viscount St. Aldwyn said that there was a considerable feeling in the country in favour of greater facilities for cases to be tried locally and more cheaply. Much as he respected the authority of Lord Halsbury, he submitted that their Lordships ought not to give a vote which would put an end to the Bill, the other provisions of which were not objected to. He suggested that Lord Hal-bury should withdraw his amendment that day and renew it if he thought fit on report, when they might have a larger House. The Earl of Halsbury said that he had no objection to withdrawing his amendment in the circumstances, upon the under. standing that he could move it again on report if he thought proper. -The amendment was accordingly withdrawn.-Several draughting and other amendments having been inserted at the instance of Lord Gorell, the House resumed and the Bill as amended was reported.

In the House of Commons Mr. Pike Pease, on behalf of Sir William Bull, asked the Prime Minister whether the adhesion of Great Britain to the Declaration of London would become final and effective upon the ratification of the Declaration; and, if so, whether the amendments in the law relating to Naval Prize of War enabling effect to be given to the Convention mentioned in the Naval Prize Bill and ancillary to the Declaration of London could be otherwise made than by an enactment passed by both Houses of Parliament. Mr. McKinnon Wood: The answer to the first part of the question is in the affirmative. The answer to the second part of the question is that an Act of Parliament is only required for the purpose of effecting such alterations in the existing Prize Court Acts as the Convention referred to in the Naval Prize Bill may render necessary or desirable.

The following is the memorandum of the Indian High Courts Bill, which has now been issued: "The object of this Bill is to adapt the Indian High Courts Act 1861 to the needs of the increasing volume of judicial business in India by making provision (2) For raising from fifteen to twenty the maximum number of judges in a High Court; (b) for establishing, if necessary, a High Court in any part of British India; (c) for enabling the Government of India to appoint temporary judges from time to time."

FOREIGN LAW.

A JUDICIAL DEADLOCK.

A SINGULAR state of things recently arose at the tribunal at Epernay The court had disposed of a number of minor cases, and then several affaires were called, relative to the troubles in the Champagne district many vignerons of Venteuil, Damery, and Vinay being inculpated Some were in attendance on bail, and others in actual custody. When the first case of the vignerons came on, M. Bourgarel, the president, noticed that one of his assessors, M. Hautefeuille, had sent the case before the court for trial, and therefore could not legally sit on the present occasion. Three avoués were in their seats, and the president appealed to each in turn to take the place of M. Hautefeuille. But each declined. They pleaded that they had been instructed in different cases to come before the court to defend some of the accused; that they intended to conduct their defences; that their position was incompatible with that of judge; and that as a member of the tribunal such a one would possibly nullify the arguments which he intended to urge on behalf of his client. The president invited the avoués to confer with the court in the chambre du conseil. They adjourned, but the conference was without result. The president admitted that the avoués were right in the attitude they had taken, and intimated that he would apply to the court in Paris to name a judge to complete the tribunal at Epernay. The result, which would not have been satisfactory otherwise, will cause, nevertheless, inconvenience, not to say hardship, for it means a prolonged detention for the accused. The court could not release them provisionally, for the same reason that the trial was not proceeied with; in fact, the court did not sit, it was incapable of sitting, and was not legally constituted. The accused, their relations, and friends, who were in the court in good numbers, received the decision with no small dissatisfaction.

INFRINGEMENT OF ARCHITECTURAL DESIGN. IN the LAW TIMES of the 10th June last, p. 129, there appears the report of a case before the First Chamber in Paris. It was peculiar in every respect. Both the plaintiff and the principal defendant were dead, and the action was pursued through their representatives. Briefly these were the circumstances: In 1887 M. Lenoir, an architect of distinction in Paris, designed a casino at Gourmalon. Some years later he was at Royan, and he noticed that a local architect

M. Bureau, had incorporated one of the most striking features of the casino into a municipal building there. The result was that the heirs of M. Lenoir sued the heirs of M. Bureau, together with M. Garnier, who was mayor of Royan at the time the building was erected, for contravention of the law of the 11th March 1902, which grants to architects the same protection for their works which other workers in the domain of art enjoy. In view of this being the first case of this nature that had arisen since the passing of the Act and the difficulties surrounding the action, the court reserved judgment. This has now been given, and the court has recognised the claim of M. Lenoir.

[blocks in formation]
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

10

Leicester, Wednesday, at 10
Leigh, Friday
Leighton-Buzzard, Wednesday, at
Leominster, Monday, at 10
Leyburn, Thursday, at 10.30
Lichfield, Tuesday (J.S.)
Liverpool, Monday (By at 11),
Tuesday, Wednesday, Thursday.
and Friday (B., A., & W.C.), at

10

Llangefni, Tuesday
Llanrwst, Friday
Loughborough, Tuesday, at 9.30
Ludlow, Wednesday, at 10
Manchester, Friday (R By), at 10
Marylebone, Monday, Tuesday,
Wednesday, Thursday, and Fri-
day, at 10.30
Merthyr Tydfil, Wednesday. Fri-
day, and Saturday
Middlesbrough, Monday, at 9.30
Monmouth, Saturday, at 10
Mountain Ash, Tuesday
Nantwich, Saturday, at 10
Nelson, Tuesday, at 9.45
Newark, Monday, at 10
Newcastle-on-Tyne. Tuesday, Wed-
nesday, Thursday (By), and Fri-
day (Adm.), at 10
Newcastle-under-Lyme,

at 9.30

Tuesday,

Newmarket, Thursday
New Mills, Monday, at 10.30
Northallerton. Saturday, at 11
Norwich, Monday, Tuesday, and
Wednesday, at 10

Nottingham, Wednesday, and Fri-
day (E.L.), at 10
Nuneaton, Friday, at 9

Oxford, Wednesday (R. By at 12), at 11.30

Penzance, Tuesday, at 10 Plymouth,* Monday, Tuesday, Wednesday, Thursday, and Friday, at 10

Portsmouth, Monday and Thursday, at 10.30

Redruth, Thursday, at 10
Rochester, Tuesday,

and Thursday, at 9.30

Wednesday,

Rotherham, Tuesday and Friday, at 10

Rye, Tuesday

St. Austell, Monday, at 10
Salford, Wednesday
Scarborough, Tuesday

Sheffield, Wednesday (J.S.), at 10
Shoreditch, Tuesday and Thursday
Skipton, Wednesday, at 9.45
Soliam, Friday, at 10

*

Southampton, Tuesday, at 10
Southwark, Monday, Tuesday, and
Thursday, at 10.30
Stamford, Monday, at 1.30
Stockport, Friday, at 10
Stockton-on-Tees, Tuesday, at 9.30
Stokesley, Friday, at 10.30
Stone, Monday, at 12.30
Stowmarket, Friday
Stow-on-the-Wold, Wednesday,
Sunderland. Wednesday,
day, and Friday (By), at 10
Taunton, Tuesday, at 10
Tavistock Saturday, at 10
Thorne, Thursday, at 11
Tiverton, Saturday, at 10
Tredegar, Tuesday and Wednes-
day, at 10.30

Thurs

Truro, Friday, at 10
Wakefield, Tuesday, at 10
Wallingford, Thursday, at 10
Walsall, Wednesday (J.S.)
Wandsworth, Monday
Warrington,* Thursday
Wellington (Somerset), Monday, at
Westminster, Monday, Tuesday,
Wednesday, Thursday, and Fri-
day
Williton. Thursday, at 11
Wolverhampton, Monday
and Friday

11

Woodbridge, Monday, at 11.15
Worksop, Tuesday, at 10
Worthing, Monday
Wrexham, Thursday (By).

*Other sittings are specially fixed if necessary.

(J.S.)

RECENT DECISIONS. AMYS V. BARTON.

Employer and Workman-Death from Wasp Sting-Accident "arising out of" the Employment-Statement of Deceased to a Carpenter is not Evidence (Gilbey v. Great Western Railway, 102 L. J. 202)-Statement to his Doctor is Evidence (Wright v. Kerrigan, 45 Irish Law Times, 84).

AT the Attleborough County Court on the 10th inst. His Honour Judge Mulligan, K.C., gave judgment in this case.

[ocr errors]

His HONOUR.-Charles Amys had for fifteen years preceding hie death been employed as engine-driver and blacksmith on the farme of Mr. Thomas Alday Barton, who paid him wages amounting to £52 108. per annum. On the 18th Oct. 1910 Amys, being then in perfect health, went with his master's machine to his master's field to help to thrash bis master's wheat. When the work was in progrese some of the labourers saw wasps upon the drum and at the back of the machine "right close against Amys," who was engaged driving the engine. No wasp was seen elsewhere that day or thereafter. Next day Amys had a swollen leg and complained of pain. He worked on for a few days. He was seen by a carpenter limping along on the way home to whom he made a statement. Dr. Alexander was called in and Amys made a communication to him in the presence of his wife. On the 1st Nov. Amys died. In cross-examination Dr. Alexander said that death was caused by blood poisoning which was eet up by the sting of a wasp. "It was," he said, the only possible thing to account for it. I do not think it is possible that a stocking could have caused the poisoning in his case." After the funeral the doctor was interviewed by a lay agent from the Employers' Liability Assurance Company and gave a written report to the company. About the same time the widow saw Mr. Barton, mentioned the waspe and the sting to him, and claimed compensation. He did not then dispute the claim. On the contrary he said he would write to the insurance company and put in her claim. He was not called as a witness. The question now arises, Are the widow and grandchild entitled to compensation? Mr. Dodson says they are not, because the occurrence was not within the contemplation of the parties when the contract of service was made. But this is not an action for breach of that contract, but a claim to a right conferred on a workman by statute by way of addition to the contractual obligations of the master. Moreover, when we bonâ fide contemplate accidents it is the unexpected that we expect. Mr. Dodson further says that the facts in evidence resemble those in Craske v. Wigan (25 Times L. Rep. 632), where compensation was refused for an injury caused by a cockchafer, and he differentiates Rowland v. Wright (24 Times L. Rep. 852), where compensation was given for the bite of a stable cat. But the facts in these cases are as foreign to the consideration of the issues of fact in the present arbitration as the exploits of the cat of nursery fame. I 46 mean, The cat that killed the rat that ate the malt that lay in the hou-e that Jack built." As I pointed out during the argument, you might just as well, when an action arising out of a motor smash is being tried with a jury, impress upon that jury the findings of another jury in another action between other parties relating to another collision. The issues to be determined here are not in themselves obscure. The employment, the injury, and the accident have been clearly established as facts. The defence mainly relied upon is that the accident was not one" arising out of and in the course of the employment." Now, many minds have been exercised for years in building up a superstructure of judicial law upon those ten trite words which are contained in the Act. Mr. Bagge cited a number of judicial decisions favourable to the widow; Mr. Dodson cited an equal number adverse to her. The truth is, the judgments read are conflicting: (L. T. Jour. June 24, 1911, p. 170). Happily, non nostrum est tantas componerelites. The Lord Chancellor has, since this case was argued, made a new departure for us. In Kitchenham v. Jchannesburg (Times, 5th June 1911), after referring to the ten words already quoted, Earl Loreburn said: "That they were of inexhaustible variety of applications according to the nature of the employment and the character of the facts proved; that the facts in each case were infinitely different; and that if judges were on each argument to discuss and differentiate them one from another, judgments would be interminable and would lead rather to confusion than to enlightenment. After that expression of opinion I must skip over the mass of refractory connotations which have been urged upon me and pass on to inquire into the nature of the employment of the deceased and the character of the occurrences deposed to; so that I may discover whether or not this singular event, judged by itself alone and not by way of resemblance to or contrast with previous cases, is or is not in fact an accident within the meaning of the same ten words according to their fair usage. Each claim will henceforth depend on its own facts. What, then, was the nature of the employment? The contract of service was yearly. It involved driving an engine. Amye had to use his eyes to watch and his hands to guide the machinery. His duties left him less time than ordinary labourers to observe and to ward off the attacks of venomous creatures. Next, what is the character of the facts proved? The appearance of wasps late in October is of itself remarkable. Where did they come from? What brought them to this one spot ? In the Encyclopædia Britannica (New Edition, title Wasp) we read: "At the approach of autumn the society (of wasps) begins to break up, the males fertilise the females whilst flying in the air, they then die often within a few hours. The females which have been fertilised creep into crevices in the ground and hibernate until the warmth of spring induces them to leave their hiding places." Having regard to the nature of the employment and to all the circumstances, I think the fair inference is that the

wasps seen so late as the 18th Oct. were female wasps which had gone into winter quarters near the wheat stack; that they were aroused and exasperated by the motion, noise, and heat of the thrashing machine; and that in their wrath they stung Amys. This would be in keeping with their well-known character. What further inference of fact should be drawn? If when the wheat was nearly all thrashed a rat touched by a pitchfork had jumped from the bottom of the stack and bitten Amys, would "the man in the street hesitate to say that the accident arose out of the employment? Ithink not, and I can see no difference in principle between that case and this. The work brought Amys to the wasps, and it also brought the wasps to Amys. The employment was the source-the fons et origoof the sting and the poison. As to the evidence. The statement of Amys to the carpenter does not appear to have been made with a view to obtain medical assistance, and is therefore not evidence: (Gilbey v. Great Western Railway, 102 L. T. Rep. 202). The report of the doctor to the assurance company is not the best evidence, and the objection to it must be allowed. Next comes the communication made by Amys to the doctor in answer (as the doctor has proved) to questions put by him to the deceased for the purpose of inquiring into the causes of his illness and of curing him. That statement stands on a different footing. The doctor said in the witness box: "Amys told me he was thrashing wheat and most have disturbed a wasps' nest as wasps were about and one stung him, and that he sat down and unlaced his buskin and took a dead wasp off his stocking." All this was objected to as being mere hearsay. But it is the duty of every workman under this Act to co-operate with his doctor towards his own restoration to health and working capacity. That is in the nature of a statutory duty, and was strongly insisted upon by Lord McLaren and afterwards by the Master of the Rolls (Sir H. Cozens-Hardy) and other members of the Court of Appeal: (Warnicken v. Moreland, 25 Times L. Rep. 129). As part of that same duty it is incumbent on the workman to answer truthfully his doctor's questione in order to obtain proper treatment. That being so, the rule recognised by Lord Blackburn, Lord Hatherley, and Lord Selborne in Sturla v. Freccia (5 App. Cas. 640) applies, and Amys's statement, made as it was pursuant to his duty to his master. must be admitted. This is well illustrated by a case in the Court of Appeal in Ireland cited by Mr. Bagge (Wright v. Kerrigan, 45 Irish L. T. Rep. 84), where the statement made by the deceased to his doctor as to his bodily injuries and the immediate cause of those injuries was the only evidence and yet it was admitted, acted upon, and held sufficient. There are no wasps in their nests in October, but the statement of Amys in other respects confirms the couclusion of fact already arrived at.

Compensation awarded. Stay pending appeal granted on payment into court of £157 10s.

Bagge, for applicant, instructed by C. Large, Swaffham;
Dodson, for respondent, instructed by Barton and Sons, Dereham.

interpretation of the Act. But I have not before had brought to my notice the reported case of National Telephone Company v. Smith (46 S. L. Rep. 986), and although in strictness I may not be bound by a decision of the Court of Session, yet I feel that out of respect for that court, unless the cases are distinguishable, I ought to follow their ruling. As I read that case all three judges agreed that the words " permanent incapacity" in the first part of sect. 17 might mean either total or partial permanent incapacity, and the dissenting judge (Lord Low) only differed from his two colleagues in holding that, in that particular case, there should have been some inquiry allowed into the then earning capacity of the workman. In other words, if he (Lord Low) had had to deal with the present case of an ascertained incapacity to the extent of 98. 3d. per week, he would have felt no difficulty in agreeing that the matter must be dealt with on an actuarial basis. The workman there had lost his right arm from his shoulder, a “permanent" injury enough, and patent to everyone. The employers had paid him compensation at the rate of 163 per week for six months, but before coming to redeem had taken no preliminary steps to ascertain the then present earning capacity of the workman. The majority of the court held, under these circumstances, that the sheriff was not bound to hold any preliminary inquiry, but might treat the case as one of "permanent incapacity," nothing being shown to the contrary. Lord Low was for a preliminary inquiry. In the present case, there has been such a preliminary inquiry on the 1st Dec. last, at the instance of the employers, when I fixed the workman's then earning capacity at 203. per week, and his "incapacity" at 9s. 3d. per week. Nothing has bappened since then, except that the workman has shown himself capable of earning 159. or more, but not exceeding the 203. per week I put him at. It was taken before me that he is not even now, and as far as at present appears he may never be, more than a 203. per week man. Mr. Elliott therefore says there is here a "permanent (though partial) "incapacity" of 98. 3d. per week, the liability" for which 98. 3d. can only be redeemed on the actuarial basis; and in deference to the Scotch case, which I am unable to distinguish, I must hold he is right in his contention. The result in point of amount is, in my opinion, absurd. The workman gets £312, plus £66 he has already received, in respect of an injury for which no common jury (or judge sitting alone) would have given him more than £150; as in the Scotch case the workman received £622 for the loss of an arm, an absurdity referred to by Lord Dundas: (p. 991). In case on appeal it should be held, I am entitled to assess the amount under the latter portion of sect. 17. I find £84 to be reasonable. My order will be that applicants be at liberty to redeem (if so advised) by payment into court of £312 on or before the 6th July next, and in default of such payment in that the present weekly payment of 9s. 3d. continue till further order. Applicants to pay respondent's costs on scale B in either event.

[ocr errors]

THE CALICO PRINTERS' ASSOCIATION LIMITED v. JOHN HIGHAM. Employer and Workman-Workmen's Compensation Act 1906Sched. 1 (17)-Redemption-Amount" Where the Incapacity is permanent."

THIS case, which came on for hearing before His Honour Judge Reginald Brown, K.C., at the Ashton-under-Lyne County Court on the 15th June, raised the question as to what is the meaning of the words, Where the incapacity is permanent," in sched. 1 (17) of the Workmen's Compensation Act 1906.

Wingate-Saul (instructed by F. 8. Rhodes and Bethell Jones, Manchester), for the employers; Adshead Elliott (instructed by S. Baguley), for the workman.

The application was for the redemption of a weekly payment of 93. 3d. being made to the workman. The workman, a cotton spinner, met with an accident on the 5th July 1909, whereby he lost the first finger of his right hand and his thumb became stiff. His average weekly earnings were 29. 3d., and he was paid 148. 7 d. weekly compensation until the 1st Dec. 1910, when the employers applied for a diminution. At the hearing of this application, it was admitted that the workman would not be able to follow his old employment again, but His Honour reduced the weekly payment to 93. 3d.; finding that the workman was a £l a week man." Од the 15th June 1911 the employers sought to redeem his weekly payment by the payment of a lump sum, and it was contended on their behalf that the circumstances of the case did not bring it within the first part of sched. 1 (17), and that the sum for which the weekly payment should be redeemed should be settled by arbitration in accordance with the second part of sched. 1 (17). On the other hand, it was contended on behalf of the workman, that the case came within the first part on the ground that the workman's incapacity to the extent of 98. 3d. a week was "permanent."

His Honour reserved his decision, which on the 22nd June he gave as follows:

[ocr errors]

His HONOUR. In all cases of redemption which have come before me I have hitherto held that the words in sect. 17 of the 1st schedule to the Workmen's Compensation Act 1906, "where the incapacity is permanent,' were to be read as if the words and total immediately followed; and that where the incapacity was only partial, or was not permanent, the sum payable was not to be arrived at on an actuarial basis, but was to be settled by arbitration." I have been led to this conclusion largely by a consideration of the grotesque result in point of amount that would generally follow any other

PROMOTIONS AND APPOINTMENTS. Information intended for publication under the above heading should reach us hot later than Thursday morning in each week, as publication is otherwise delayed.

His Honour Judge BRYN ROBERTS has been appointed a Member of the Advisory Committee for the selection of magistrates for Carnarvonshire.

Mr. CHARLES PITCHER CLARKE, Solicitor-General, has been appointed one of His Majesty's Counsel for the Island of Barbados. Mr. Clarke was called by the Inner Temple in 1883.

Mr. J. B. CAMPION COLES, of the firm of Coles, Sons, and Tilburn, of Hailsham, Eastbourne, and Bexhill, has been appointed Joint Registrar of the Lewes and Eastbourne County Court (with Mr. M. S. Blaker, of Lowes), in succession to his father, Mr. J. H. Campion Coles. Mr. Coles was admitted in 1883.

Mr. GEORGE MAYNARD MARTIN, solicitor, and a member of the Senate of Cambridge University, has been appointed Wolverhampton Borough Coroner, in place of the late Mr. Robert Alfred Willcock. Mr. Maynard was admitted in 1888.

Mr. SEYMOUR WILLIAMS, has been appointed Coroner for the Southern or Lower Division of Gloucestershire. Mr. Williams was admitted in 1890 and is a member of the firms of Lawrence, Williams, and Watts, Bristol, and Seymour Williams and Co., of Westminster.

Mr. J. W. O'HALLORAN, assistant town clerk, formerly of Cardiff, has been appointed Town Clerk of Chatham, in succession to Mr. Henry Philip Mann, who has retired after twenty years' service. Mr. O'Halloran was admitted in 1892.

Mr. GEORGE CHIVERS BOWER, barrister-at-law, has been appointed an Official Trustee of Charitable Funds under the Charity Commission, in succession to Mr. Frederick Clifford Henry, retired. Mr. Bower was called by the Inner Temple in 1888.

Mr. THEODORE LORD, solicitor, Manchester, has been appointed a Commissioner for Oaths. Mr. Lord was admitted in July 1904.

Mr. VERNON S. WOOD, solicitor. of Manchester, has been appointed a Commissioner for Oaths. Mr. Wood was admitted in March 1905. Messrs. DONNISON and SON, 147, Leadenhall-street, E.C., as Commissioners of the late Supreme Court of the Colony of the Cape of Good Hope, have now been enrolled as Commissioners of the several Divisions of the Supreme Court of South Africa, and as such are described as Commissioners of the Supreme Court of South Africa.

« EelmineJätka »