Page images


11 & 12, BELL YARD,





285 287

July 29, 1911.


" By the EARL of HALSBURY and a Distinguished Body of Lawyers.

Managing Editor : T. WILLES CHITTY, Esq.




AEROPLANE. The development of the Aeroplane has forced Governments to fresh legislation, and will bring fresh problems before the Courts. “ The Laws of England” will deal with such modern innovations as the Law of Traffic in the Air, in the same way as it is dealing with every detail in connection with Traffic on Land and Water, whether by Stage Coach, by Cycle, by Motor, by Railway, or by Ship.

“The Laws of England” will be found to cover every living legal subject, and by means of its annual accumulative supplements will always be up to date, and will always be abreast of every new development.

Specimen Articles and Full Prospectus sent on Application.



Week -" Paid-up


28 RECEIVER.-Law of British Guiana

• Stock". --Bankruptcy-Right of get off

IBI8R NOTEB .............................. Agreement not to appropriate funds OOMMENTS ON CASES........................

287 in reduction of deb:




289 LIMITED.-Law of New South

NOTES OF RECENT DICIEIONS NOT Wales - Company - Purchase by


291 new company of assets of existing

OUR LITERARY COLUMN.--Nietzsche company....


on Liw and Punishment ................. 29.3 LAW LIBRARY ................................



- Reform versus Revolution...

29.5 WEST 6. GWYNNE. - Landlord and

FOREIGN LAW.-Progress in Penology 298 tenadt-Ledge-Covenant not to

ECCLESIASTICAL LAW-Divorce and underlet without coosent - Con.

the Church...

299 ditions of consent-"Fine or em OBIMINAL LAW AND TRE JURISDIO of money in the nature of a fpe "... 759

TION OF MAGISTRATE8.- Borough RrX V. SPECIAL COMMISSION RS OF Quarter Sessions-Topics - Report I COME Tax: Er rarte ESSEX

OD Vivisecrion-The New Police HALL. - Berenue - Iocome tax


299 Lands sested in trustees for COUNTY COURT8.- Sittings of the cbaritable purposes


Courts-Recent Decision : Norris v. MAASS v. GAS LIGHT AND COKE


300 COMPANY.- Practice- Disco'ery

GENERAL INTELLIGENCE.- Heira-alInterrogatories Action icr

Law and Next of Kin-Appointmalicious prosecution


ments under the Joint stock COAKER. WILLCOCK8.-Commoner

Winding-up Acte - Creditors under Right to pasture sh-ep on Dartmoor

Estates in Chancery-Creditori -Ubligation of occupier of land to

under 22 & 28 Vict. c. 8.5

201 fence against communable caute

LAW SOCIETIES. Medico Legal Scotch sheep....


Society : Annual Dinner - HardHIGH COURT OF JUSTIOR.

wicke So iety : Annual Dinger-



| DOBBESPONDENCE Charity- Construction – Legacy

.......................... 10.5 Augmentation fund for benefice- NOTBB AND QUERIDS.

.................:06 Coadition Never be held in LAW STUDENTS' JOURNAL - The Law pluralug"-D. feasance

Society : Honours Examination, KING'S BENCH DIVISION

June 1911; Preliminary Examination, July 1911





THE COURTS AND OOURT PAPIBB. - Building-Party wall-External

Rota of Registrars-Rules of tbe wall..

773 Rex o. DAVIES AND UTAERB: Er parte

Supreme Court (Juiy, 1911-Bigh

Court of Justice: Long Vacation PEAKE. Local government Notice ..........................................

307 Vestry clerk-Duties of - Making

THE GAZETTB8................................ 309 out lists of voters -Canvass fir verification of-Owners' returns ... 778' BiBT88, MARRIAGI8, AND DEATHS 310

............... 771


BUTTERWORTH & CO., 11 & 12, Bell YARD, TEMPLE BAR, LONDON. Australia



Post Box 251, Oalcutta. 76, Elizabeth Street, Sydney.

(8/2, Hastings Street.)

The he Law and the Lawyers .

To Readers and Correspondents.

From the return for 1910 of the Director of Public ProsecuLions, showing the working of the regulations for carrying out the Prosecution of Offences Acts, together with other statistics, it appears that the work of his department during last year has again increased. The director prosecuted in 612 cases in 1910; appeared in 237 cares under the Criminal Appeal Act 1907; and granted his consent in 238 cases and refused it in 174 cases under the Prevention of Crime Act 1908, which deals with habitual criminals. A summary of the work done for the last four years is as follows:

[blocks in formation]

All communications must be authenticated by the name and address of the writer, not

necessarily for publication, but as a guarantee of good faith. Anonymous communications are invariably rejected. All communications intended for the Editorial Department sbould, in order to prevent

delay, be address'd to the “ EDITOR OF THE LAW TIMES." Any contributions that may be sent on approval will be carefully considered by tho

Editor; but no responsibility wpatever can be accepted in respect thereof, alıbough, if unsuitable, every effort will be made to return them, provided that a stamped

addressed wrapper is iaclosed for that purpose. The copyright of all contributions (including reports paid for) shall belong to the

proprietors of the LAW TIME3, together with the rigat of repubrication in any form i hey may think desirable. Apart from any oxpress Agreement that may be made,

contributions are only received and considered on these conditions Advertisements, orders for papers, &c., sbould be kept distinct and addressed to iho

Publisher, Mr. HORACE Cox, “Law Times" Office, Windsor House, Bream's-
buildings, E.C.

United Kingdom.

For One Year ........................
.£2 14 0 For One Year ............

...2 2 0 For Hall-Year..........................

1 7 0
For Hall-Year...........

1 1 0

WITHOUT REPORTS. For One Year ............. £3 0 0 For One Year..

..........£2 4 4 For Half-Year...

For Half-Year.

1 2 2 Portfolios for preserving the current numbers of the LAW TIMES, price 58 6d. LAW

TIMES REPORT8. price 3s. 60. Tbe Publisber uodertakes the binding of the LAW TIME8 and LAW TIMES REPORTS at tbe following rates:

PER VOLUME. LAW TIMEs in balf call, office pattern ...............

59. 60. LAW TIMES REPOBTS, ditio, ditto ...

59. Cd. LAW TIMES REPORT), dito, ditto, with Statutes at end.... 58. 60. Parcels of Volumes for binding should be sent to the Publisher, LAW TIMES Omie, Windsor House, Braam's-buildings, E.C.

TO ADVERTISERS.-SCALE OF CHARGES FOR ADVERTISEMENTS. Four lices of 30 words or less £ 8. d. One page

10 0 0 than 30 words in body type 3 6 Half page.

5 0 0 Each additional line...

6 One Column

3 10 Advertisements ordered for a series of three insertions are charged 10 per cent, under

scale, and for six or more insertions 20 por cent. under. Paragraph Advertisements 18. per line, minimum 58. No series discount. Advertisers whose reference is under ioitials to this ofice, should remit od, additional

to defray postage in transmitting replies to their Advertisements. Advertisements must reach he office not later than five o'clock on Thursday aft:rnoop

and must be accompanied by a remittance, Posi-omce Orders payable to HORACE Cox,

Vol. CXIII.-No. 3555.

... 1 100

[blocks in formation]

Act 1900 the director undertook prosecutions in nine cases, and in six convictions were obtained ; and that the Incest Act 1908 was wanted to deal with a very urgent state of affairs is shown by the fact that during the year in fifty-six cases prosecutions were instituted, resulting in thirty-six convictions.

from men who are well versed in the common law work of this country, whereas the sole active legal support of the Lord Chancellor is furnished by Lord GORELL.

The most striking feature of the return is the increase in the number of persons charged under the Coinage Offences Act 1861 as compared with the preceding three years. The total number of persons charged in 1910—namely, 283– and the number convicted (181) show increases of eightythree and sixty-one respectively over the figures for 1909. No less than sixty-four of the 181 convictions were for felony, and of these sixty-four persons thirty-four were new offenders. With regard to cases under the Criminal Appeal Act 1907, the director appeared in 237 appeals, and in 162 of these the appeals were dismissed in one of these cases the sentence was increased), in thirty-nine the appeals were allowed and the sentences reduced and part of the convictions quashed, while in thirty-six the convictions were quashed altogether. Some interesting figures are given in the list of cases containing the costs of all those undertaken by the director. The prosecution of the officers of the parish of Gelligaer, Merthyr Tydfil, cost £1403 10s. 80.; of W. H. and E. L. Ball, the prosecution under the Incest Act which went to the House of Lords, £609 16s. 10d.; of Crippen, £1277 78. 6.; of Siegfried Helm, the espionage case, , £453 28. 8d. ; and of E. F. Milius, found guilty of libel on His Majesty, £1288 98. 20.

[ocr errors]
[ocr errors]

PAID-UP SHARES” AS “ STOCK.” Re Willis; Spencer v. Willis, recently decided by Mr. Justice Eve, raised two main points considered on an adjourned summons for the purpose of getting the court's judgment on the true construction of a will. The testator devised to his wifo his freehold house “in which I now reside," and the first point raised was whether certain land additional to that in bis possession at the date of the will, such ground being used as garden and paddock in an occupation similar to that of the original land owned by him, passed under the devise, and this was held to be the case. We do not le bour this point now, for the other question raised is the one which seems worth a more detailed reference.

The will further empowered the trustees to invest in debentures, debenture stock, or preference stock

of any company in the United Kingdom. It will be seen that, whether designedly or otherwise, the will distinguishes between “debentuces and debenture stock," and the testator must be taken, the argument is just worth noting, therefore to indica te his precise meaning with a little particularity, and therefore when be bays

preference stock” the contention is that he meant that and nothing else. In this case, however, the trustees had invested trust funds, not in preference stock, but preference shares. The second question raised before Mr. Justice Eve was as to the validity of such an investment, looking to the precision of language employed in the will, and considering, contra, the circumstance that these shares were fully paid and were those of an English company. The parti. cularity of language appealed strongly to the learned judge, and, inasmuch as there was a distinction between preference shares and preference stock, Mr. Justice Eve held against the trustees and declared the investment to be unauthorised.

In many ways it seems unfortunate that so minute a distinction should be allowed, in a case where the circumstances are suoh as those already indicated, to sway the court. Prima facie the word “stock" in all business transactions, and certainly in the mind of every average trustee, includes fully paid shares. Shares cannot be converted into stock until fully paid, but, onco so paid, there is very little distinction judeed between the two beyond the point that stock, like a joint, is oa pable of being out as desired, wbilst shares, like a cutlet, are taken &8 unite.

“Stock” in the Trustee Act 1893. 8. 50, is deemed to include fullypaid sbares, and in Ex parte Copeland (2 De G. M. & G. 914) fully; paid_shares in a railway were held to be stock wi bin the meaning of the Bankruptcy Law Consolidation Act 1849, 8. 201. Another decision is very much in point. It is one by the House of Lords in Morrice v. Aylmer (34 L. T. Rep. 218; L. Rep. 7 H. L. 717).

It had been originally heard by Sir George Jessel, M.R, and subsequently by Lord Chancellor Cairns and Lord Justice James. The will there bequeathed “all such stocks in the public funds or sbares in any railway, and of wbich I may die possessed.” The testator owned some £6300 ordinary stock_and sixty-three“ new sbares” in the London and North-Western Railway Company. It was beld that the stock passed under the bequest of “shares.' This decision is the stronger, because it reversed the Master of the Rolls' (Sir George Jessel's) decision, where a very technical meaning had been attached to the expression “share on the ground that the will meant what it said, and further that the point was covered by tbe authority of Oakes 0. Oakes (9 Hare, 666), İrindtr v. Trinder (L. Rep. 1 Eq. 695), and Re Gibson (20 L. T. Rep. 835 ; L. Rep. 2 Eq. 669). In putting this narrow construction on sbare," the Master of the Rolla bad to decide, it may be inferred, contrary to his own wishes, for he had “a very strong impression that if the testator were alive he would not have approved of my decision.” The Lord Chancellor in Morrice v. Aylmer (ubi sup.) overruled Oakes v. Oakes (ubi sup.), but the other cases were somewhat distinguished and put aside. The learned judge observes that “stock” appears to denote a complete payment of shares and that a time has come when those shares may be assigned in fragments. He continues: “When a man has an interest in a railway and is an owner of stock in & railway he is eaid to be a ebareholder in the company, and is pro: perly said be sbareholder in the

company, and would call himself a sbareboldes in the company.

It appears to me that it would be putting a meaning upon the term “shares so technical as at once to be in opposition to the ordinary sense of the word, if the word “sbares” was beld to mean for the purpose of & bequest sometbiog different from, and something which would not pass, stock in a railway company.

The House of Lords completely affirmed this point of view. Lord Hatherley observed that, “If this present testator bad been minded to make. as of course he was at liberty to make, a distinction between ‘gbares' and stock ’in railway companies, he might have so pressed himself as to give all his shares to A. and all his stock to B.” He goes on again to say that “stock is simply a set of shares put together in a bundlo with this peculiarity added to them that they are transferable in a manner in which you cannot transfer the ordinary shares of a railway company." Again : “I think it is more con. sonant with the ordinary language that is used in these transactions, including the language of the Acts of Parliament, where such an expression occurs, to say that “sbares' shall be held to include stock.'

On Tuesday last, on the report of amendments, the House of Lords, by thirty-seven votes to twenty-one, retained clause 1 of the County Courts Bill, despite the opposition of Lord HALSBURY, Lord Robson, Lord MERSEY, Lord ALVERSTONE, and Lord LANSDOWNE. As usual, the Lord Cbancellor devoted his attention to a denunciation of the Bar, incidentally again taking the opportunity of depreciating the work done by the County Court judges. We note that Lord LOREBURN carefully avoided pointing out how his proposals would cheapen litigation and facilitate the disposal of the poor man's cases. Being desirous of passing his measure, he was wise to avoid dealing with these questions and to devote his attention to disparaging the Legal Profession, feeling sure that this would appeal to many who were not aware of the true position of the case. After courteously stating that the objections advanced against the Bill" were all stuff and nonsense,” he went on to say that the discussion showed once more how lawyers were against all law reform, and, further, that the opposition was an interested professional opposition—iwo statements that can only be characterised as absolutely untrue.

[ocr errors]
[ocr errors]


[ocr errors]

The value of Lord LOREBURN's knowledge of the County Courts and of the Profession in general can be gauged from the observation that he saw fit to make with reference to the Bar Council. He stated that he thought “none of these eminent lawyers would pretend to have any personal knowledge of the County Courts"-a statement which shows an extraordinary misapprehension on the part of the Lord Chancellor as to the composition and means of knowledge of that body. One might well ask what is the extent of Lord LOREburn's personal knowledge of the County Courts, and we feel sure that if he presided even for only a fortnight over one of these tribunals he would rapidly change his opinion, which seems to be that they have notbing to do and that the post of a County Court judge is a mere sinecure. It is an important factor in the present situation which should not be lost sight of, that the opposition in the House of Lords, so far as the Legal Profession is concerned, comes


[ocr errors]
[ocr errors]

It may be seen, therefore, that the learned judges whose opinions have been thus set out were not prepared, in the absence of upam. biguous direction, to put a narrow meaning on words used so freely in the business man's everyday vocabulary. For these reason: it is possible to regret the decision of Mr. Justice Eve in Re Willis (ubi sup.), for it seems to draw a very fine distinction-indeed, the learned judge himself has described it as 6 minute.” These are not days when busy men care to pose as trustees, and such subtle traps for the funwary trustee as are laid in rulings which differentiate between “stock" and "fully paid shares” are likely to make them still less anxious to shoulder the burdens of a trust.

not ebb and flow. It is a remarkable fact that the Legislature has already recognised certain public rights of fishing in Lough Neagh : (see the Irish statutes 17 & 18 Geo. 3, o. 19, 8. 7; 23 & 24 Geo. 3, C. 40; 26 Geo. 3, c. 50; 39 Geo. 3, c. 51, and tho Pollen Fishing (Ireland) Aot 1881). It is rather unusual nowadays to deal with the rights of property of partioular members of the public by public general legislation; but doubtless in this special case the exceptional size of Lough Neagh and the extensiveness of the popu. lation that is dependent upon the fishing in the lough will be urged as reasons for special treatment.

[ocr errors]


[merged small][ocr errors][merged small][merged small]

In sentencing some prisoners who had been convicted of riot at the Belfast Assizes last week, Mr. Justice Boyd confessed that he had been very much exercised in his mind to know what to do. He was, he said, bound to maintain the law, and to see that it was not violated by rowdies in the streets of that city. Two of the prisoners who had been seen by a number of policemen going ioto a house, wrooking it, throwing out the furniture, and burning it in the street, were sentenced to eighteen months' imprisonment with hard labour. Two others got twelve months with hard labour. These sentences do pot seem, under the circumstances, to be harsb, particularly as the defence set up on behalf of the prisoners was an allegation, or rather suggestion, of a conspiracy on the part of the police—a suggestion that was ecouted by the jury.

The Recorder of Dublin made some strong comments on the practice of some of the Dublin police magistratee, in dismissing a police oharge, to add to the dismissal some words such as Proper case for inquiry.” The matter arose on the hearing of an action for damages for false arrest and malicious prosecution at the suit of a Dublin citizen against a member of the police force. The plaintiff had been arrested by the police, and had been charged with loitering for the purpose of committing a felony. The magistrate dismissed the charge in the following way: “ Dismissed-proper case for inquiry.” The respondent then brought an action against the police constable who had arrested and charged him. The recorder said that the magistrate had neither jurisdiction nor authority to add such & rider to his dismissal of the charge. If it was put as part of the order of the court, he was sure that the King's Bench Division would quash it by certiorari. He pointed out that he had frequently to consider the effect of such qualifying riders, particularly when made with reference to the granting of publicans' licences. The recorder came to the conclusion that the rider was no part of the decision, but only a comment made by the magistrate on the evidence.

THE problems given rise to by the enactment contained in sect. of the Statute of Frauds (29 Car. 2, c. 3), requiring "any agreement that is not to be performed within the space of one year irom the making thereof "to be in writing, are never ending. For despite the seemingly lucid and anambigaous nature of that provision, the permutations and combinations of which its interpretation is susceptible are manifested by a host of cases that have called for the decision of the courte. But there is one aspect thereof that, until the recont case of Hanau v. Ehrlich (noted ante, p. 243), had apparently not needed judicial assistance, although parol agreements similar to that whiob was there dealt with are probably of common occurrence. It appeared that, at an interview between the plaintiff and the defendant, it was orally agreed that the plaintiff should act in a certain capacity for the defendant's firm. The agreement relied upon by the plaintiff was found by an arbitrator to be an agreement for employ: ment of the plaintiff for a period of two years subject to six months' notice on either side during that period. There was no memorandum in writing containing all the terms stated by the plaintiff in his evidence as constituting the agreement between himself and the defen. dant. Under these circumstanoes, the question to be determined was whether the agreement was taken out of the operation of the statute. It was decided by Mr. Justice A. T. Lawrence that the fact that the employment for a period of two years was subject to six months' notice on either side during that period—thereby giving either party the right to terminate it within the yeardid not reduce the agreement to one that might “ be performed within the space of one year from the making thereof." Consequently, the plaintiti's claim for damages founded on a breach of the agreement was not enforceable. This view met with the unanimous approval of the learned judges of the Court of Appeal (Lord Justices Vaughan Williams, Fletcher Moulton, and Buckley), as stated in our note. Tho same is strictly in harmony with what was laid down in the leading oage of Peter v. Compton (Skinnor, 353; 1 Sm. L. Cas., Ilth edit., p. 316) as the general rule to be followed when applying the statutory provision. It relates to agreements which appear from their terms to be actually incapable of performance within a year; not to agreements which may or may not, according to ciroumstances, be performed within that period. Somewhat at variance with that general rule is the view that where an agreement distinctly showe. upon the face of it, that the parties contemplated its performanoe to extend over a greater space of time than one year, the caso is within the statute. But where the agreement is such that the whole may be performed within a year, and there is no express stipulation to the contrary, the statute does not apply. That proposition was said by Chief Justice Tindal in Souck v. Strawbridge (2 C. B. 808) to be the result of the decision in Boydell v. Drummond (11 Eest, 142). lo McGregor v. McGregor (21 Q. B. Div. 424, at p. 429) Lord Esher, M.R. expressed his conourrence in that proposition, but added that, in order to bring a case within the statute, the performance of it must of necessity be extended beyond the year. The decision in that caso was relied upon by the plaintiff in Hanau v. Ehrlich (ubi sup.) as an authority in his favour. But whether or not the proper construction of the statutory provision is that it relates to agreements the completo performance of which is not intended to be performed within the space of one year, or to agreements which are of necessity incapable of being 80 perfcrmed, it becomes immaterial to discuss when the true effect of the power to give notice to terminate the period for the performance of the agreement is considered. The employment of the plaintiff in the present case was fixed by the agreement at two years, subject to six months' notice on either side during that time. The exercise of the power to give euch notice would terminate the obliga. tion further to perform the agreement, but it would not affect the period originally defined for thas performance. On the contrary, it would render the performance imperfect, as having been arrested before its completion. The“ space” would still be two years. Regarded in the light of a mere defeasance clause--as the plaintiff contended it was—the condition as to giving notice would not take the case out of the statute, as appears from such case: as Lavelette v. Riches and Co. (24 Times L. Rep. 336), following Dobson v. Collis (1 H. & M. 81; 25 L. J. 267, Ex.). Although it might put an end to the agreement within the space of one year from the making thereof, the phrase * not to be performed would not be evaded.

In the case of Irish Provident Assurance Company, which came before Mr. Justice Barton on the 20th inst., an interesting question of practice arose which the judge did not decide until he bad consulted the Maeter of the Rolls, who was stated to have already decided the point. The company is being compulsorily wound-up under the supervision of the court, and the liquidator applied for the examina. tion of certain witnesses. The question was whether they should be examined in public or in private. Mr. Justice Barton stated that such an examination took place merely fər the purpose of discovery, and that the practice in the court of the Master of the Rolls-a practice that he intended to adhere to—always was to have the examination conducted in private. The judge added that the law in Ireland as regarded such examinations was different from that in Eagland, inasmuch as seot. 175, which related to them, had been deliberately excluded from the Act in its application to Ireland. Accordingly his Lordship directed each witness to be examined in camera in the presence only of the court, counsel for the liquidator, the witness's own counsel, and an official shorthand writer.

A member of the Irish Party has given notice of his intention to introduce a Bill to negative the effect of the decision of the House of Lorde in the Lough Neagh case (see ante, p. 263). Presumably this will be effected by an enactment declaring that tbat expanse of water is a great navigable inland sea, and that there is a public common of piscary therein. Sects. 65 and 114 of the Fishery (Ireland) Act 1842 and seot. 1 of the Fishery (Ireland) Act 1850 appears to recognise that there may be a general public right of fishing in the nature of a common of piscary in inland and freshwater portions of rivers and lakes in Ireland. Such a right has been stated to exist in parts of the river Suir : (see Cooner's Fishery Acts, 2nd edit., p. 66); but it is difficult to see how a general right of fishing can exist or be created (except by Parliament) in a river or lake where the tide does

A POINT of divorce law of considerable interest and importance wag decided by the Court of Appeal, affirmiug the decision of Mr. Justico Bargra ve Deane, in the recent case of Stevenson v. Stevenson (noted ante, p. 268). Where adultery coupled with desertion is relied upon by a wife as the ground for divorce from her husband-as she is empowered to do by sect. 27 of the Matrimonial Ca uses Act 1857



[ocr errors]


[ocr errors]
[ocr errors]

(20 & 21 Vict. c. 85), wherein the sole reasons for which a divorce may be obtained are specified-suob desertion must by that section bave been “without reasonable excuse," and have lasted “ for two years or upwards.' The necessity for the prolongation of the deser. tico for that period has, by sect. 5 of the Matrimonial Causes Act 1884 (47 & 48 Vict. o. 68), been expreesly altered in one case onlynamely, where the respondent has failed to comply with a decree of tbe court for restitution of conjugal rights. But that exception bad no application in Stevenson v. Stevenson (ubi sup ), The question t bere raised was wbeth r the fact that the presentation of a potition by the wife for judioial separation on the ground of her husband's adultery, at a time when there had been desertion by him for less than the statutory period, and the continuance of such petition on the files of the court, prevented the subsequent desertion by the husband from being “without reasonable excuse," so as to preclude the presentation by the wife of a supplemental petition for dissolution of the marriage on the ground that the husband had, without Jawful cause, cesorted her. The Master of the Rolle (Cozens-Hardy), in delivering what was practically the considered judgment of the court-for the learned Lords Justices (Farwell and Kennedy) contented themselves with the mere expression of thoir

therein pointed out that the wife, by her petition for judicial separation, was praying the court to require her husband to keep away from her. She had by her original petition pat it out of the power of her husband to return to her. Consequently, when the supplemental petition was filed there had not been “desertion, without reasonable excuse, for two years or upwards," as required by the section, notwithstanding that the supplemental petition was not preseoted until Jan. 1911 and the desertion took place in Dec. 1908. The “reasonable excuse for the basband's continueà des rtion was not wanting: Io coming to this conclusion, the court took as a guide what was laid down by Mr. Justice Gorell Barnes in Kay v. Kay (91 L. T. Rep. 360; (1904) P. 382) and by the Court of Appeal in Harriman v. Harriman (100 L. T. Rep. 557; (1909) P. 123). Ii in neither of those two ca-es were the facts precisely on all foars with those in the present case, the principle of both was capable of being applied thereto, and the observations in the course of the judgments were of material assistance. In Kay v. Kay (ubi sup.) a wife petitioned for divorce on the ground of cruelty and adultery. Atiho date of the filing of the petition the parties had not lived apart for two years, no charge of desertion was then made. But wben they had been soparated for that period a supplemental petition was presented charging the husband with desertion. The charges of cruelty and adultery failed. Ms. Justice Gorell Barnes refused the wifo a decree of judicial separation, as she had prevented her busband from doing anytbing by her own act. That is to say, the filing and prosecution of the petition for dissolation of the marriage precluded the wife from successfully pleading that the Blat atory period of desertion was running during the time that the suit was beirg maintained. In Harriman v. Harriman (ubi sup ) it was held by the Master of the Rolls and the five Lorde Justices, sitting as the full Court of Appeal, that the effect of the non cohabitation clause in a magistrate's order, made under sect. 5 of the Sum. mary Jurisdiction (Married Women) Act 1895 (58 & 59 Vict. c. 39), was to prevent the continuance of the desertion by a husband after the date of the order. The result was that there had act been der ertion, without reasonable excuse, for two years by the husband go as to satisfy the requirements of sect. 27 of the Matrimonial Causes Act 1857. As was said by the Master of the Rolls in hiq judgment in that case, the wifo bad, by obtaining the order, not only expressed bor desire that cobabitation should not be resumed, but had effectually prevented it. The order could not have a less effeot than a separation deed made after desertion, and such a deed would prevent the statutory period of desertion from running on. Pari ratione that would be the consequence of a petition for judicial separation, as was beld in the present case of Stevenson v. Stevenson (ubi sup.).

and by duob agreement the defendant contracted and warranted that the mansion-house was in first-class order as to drainage and otherwise. After the purchase was completed and the conveyance executed, the plaintiffs discovered serious defects in tho drainage. It was held, in an action by the plaintiffs for damages, that after conveyance such action could not be maintained. Mr Justice wille said: "The case is an illustration of a broad principle of law which is perfectly well known and constantly acted upon, namely, that where a preliminary contrac of any description, whether verbal or written, is intended to be srpreeded by one of a superior description, then the later contract — the superior contract — prevails, and the stipula tions in the earlier one no longer be relied That proposition is laid down with

great distinotness

in Leggolt 7. Barrett.” On the other hand, it has been said that the conveyance is only conclusive in respeot of matters to be done prior to it. Tbue in Saunders v. Cockrill (87 L. T. Rep. 30) S. agreed to buy a house in the course of erection from c., who agreed to supply and fix cortain drains, stoves, fixtures, &c, and to complete the house in a proper and workmanlike manner, and it was held that, notwithstand. ing the completion of the conveyance of the house, S. could maintain an action against C. for failing to supply and fx certain articles, aod for not completing the house in a proper and workmanlike manner. Lord Chief Justico Alverstone said: • The rule is that if the contract is collateral and is independent and is in addition to the desoription of the property, an action can be brought despite the completion of the conveyance ; and Mr. Justice Chappell said : “I am certain the principle is that if the terms of the contract contemplate compensation, or something to be done subsequent to the contract, that is operative, and on & breach of the contract com pedia. tion can be claimed, or damages for what has not been done. The conveyance is only conclusi ie in reepect of matters to be done prior to the conveyance.” In Clarke v. Ramuz (65 L. T. Rep.657; (1891) 2 Q. B. 456. C. A.) the facts were shortly as follows: On the 2nd Aug. 1889 the defendant entered into a contract for the sale to the plaintiff of five small plots of building land, the purchase to be completed on the 12th Aug. 1899. The conveyance was not executed until the 21st Oct. 1889, when the plaintiff paid the balance of the purchase money. The defendant remained in possession until completion, and, while be was in such possession, a trespasser, without bis authority or koowledge, removed large quantities of surface soil from the property. At the time when completion took place neither the plaintiff nor the defendant koew that this had been done. The plaintiff did not find out that the coil had been removed till August or September 1890. He then commenced an action against the vendor for wrongfully, and in breach of his duty to the plaintiff under the contract for sale, suffering the surface soil to be removed ; and it was held that, not withstanding tbe conveyance, the purchaser could maintain the action. Lord Justice Kay in the course of his judgment said : “ It was strenuously argued that although the parties at that time knew nothing about what happened. the fact of the purchaser's having taken a conveyance of the land , deprives him of any remody. The proposition must be that though he bad a remedy before he took the conveyanco. beca18e he took the conveyance without asserting his rights at that moment 'be lost all remedy. I could understand this if he took the conveyance with his eyes open, knowing at the time what the state of the property was, and did not make any claim ; duob conduct might-I do pot say it would, but it might be argued that it would—amount to a waiver of his right. But that is not the present case. Here the plaintiff knew nothing about what had happened. I cannot see any reason whatever why under these circumstances the conveyance should deprive him of the right which he had previously, but which be was ignorant_of, and therefore could not bave intended to waive." Again, in Re Turner and Skellon (41 L. T. Rep. 668; 13 Ch. Div. 130) it was decided that where in an agreement for the sale of land the oonditions provided that if any error or misstatement should be lound it should not adoul the sale, but that compensation sbould be made in respect thereof, and an error in the quantity of the land was discovered after the conveyance had been executed, it was held that the purchaser was entitled to compensation (and see numerous cases cited io Dart's Vendors and Purchase18, 7th edit., vol. 2, p. 813). In Palmer v. Johnson (51 L. T. Rep. 211; 13 Q. B. Div. 351) Lord Justice Bowen in the course of his judgment said: “ Now, it is commonly said that where there is a preliminary contract for sale wbich bag afterwards ended in the execution of a formal deed, you must look to the deed only for the terms of the contract; but it seems to me ono cannot lay down any rule which is to apply to all such cases, but must endeavour to see what was tbe contract according to the true intention of the parties. Suppose the parties should make a parol contract with the intention that it should afterwards be reduced in to writing, and that that which is reduced into writing shall be the only contract, then of course one cannot go beyond it; but if they jotend, as they might, that there should be something outside such contract, they might agree tbat that should exist potwithstanding it was not in the contract which was put into writing. In the same way, when one is dealing with a deed by which the property has been conveyed, one must eee “if it covers the wbole ground of the preliminary contract.

One must construe the preliminary contract by itself, and see whether it was intended to go on to any and what extent after the formal deed. had been esecuted.” It is difficult, if not impossible, to extract any general rulo from the foregoing cases. It seems to be a question of fact and intention in each cage. As a rule, bowever, it may be taken that the contract does merge in the conveyance, and the exceptione to that rule are not very numerous. This being so, it beboves praca titioners to insert in the conveyance proper covenants for the per

[ocr errors]


A QUESTION which not infrequently arises, and upon which there is no very satisfactory authority, is to what extent the stipulations of a contract for salo aro merged in the conveyanoe. It has been laid down by judges from time to time that when there is a preliminary contraot wbich is afterwards reduced into a deed, the rights of the parties are governed exclusively by the deed. Thus in Leggott v. Barrett (43 L. T. Rep. 641; 15°Cb. Div. 309, C. A.)-& partnership Case-Lord Just:oJames vaid : “If parties bave made an executory contract which is to be carried out by a deed afterwards executed, the real completed contract between the parties is to be found in the deed, and that you have no right whatever to look at the contract, although it is recited in the deed, except for the purposes of construing the deed itself. You have no right to look at the contract either for the purpose of enlarging, or diminishing, or modifying the contract which is to be found in the deed itself.” And Lord Justice Brett said: “I entirely agree with my Lord that where there is a preliminary contractin words, wbicb is afterwards reduced into writing, or where there is a preliminary contract in writing, which is afterwards reduced into a deed, the rights of the parties are governed in the first case entirely by the writing, and in the second ca se entirely by the deed.” In GreswoldeWilliams v. Barneby (83 L. T. Rep. 709) the facts were shortly as follows: By an agreement in writing in 1898, the plaintiffs agreed with the defendant for the purchase from him of an estate in see eimple,

[ocr errors]
[ocr errors]

formance and observance of all the stipulations of the contract which have not been performed prior to completion. As pointed out by Mr. Justice Kekewich in Re Cooper and Crondaco's Contract (90 L. T. Rep. 258), the object of having a deed of conveyance is not merely to vest the property the subject of it in the purchaser, but to embody covenants as to what must be done under the contract for sale after completion of the purchase. Therefore wbere a purchaser bought under a contract which made him liable to erect and for ever maintain fences as marked on the plan of property sold by public auction, the vendor was held entitled to have the obligations of the purchaser expressed in the conveyance to bim of his lot. Occasionally it happens that the thing remaining to be done under the contract is of a nature wbich it is not desirable to mention in the conveyance. In that case the written undertaking of the vendor, or his solicitor, ag the case may be, to perform tbe same should be taken at the time of completion

[ocr errors]

de ven,


Mr. Ralph Simer, of The College, Durham, clerk of the peace for the county of Durbam, who died on the 24th June, aged seventysis

ears, lett estate of the gross value of £55,991, with net personalty £28,528.

Hje Honour Judge Francis Henry Bacon, judge of the Bloomsbury and Whitechapel County Courts since 1878, who died on the 10th Juoe, aged seventy.nine yeare, lest estate of the gross value of £118,408 183. 7d., of whică the net personalty has been sworn at £117,483 93. 23.

Mr. Robert Thorburn, of Peebles, and of Biarritz, France, solicitor, senior partner in the firm of Thorburn and Lyon, wbo died on the 12th April, left, in addition to real estate, personal estate of the value of £32,661, of which the personal estate in the United Kingdom amounts to £31,561.

The Bristol City Council at a meeting have adopted & resolution deciding to zive the members of the police force one day's rost iu

The scheme necessitates the employment of filty additional constables at a cost of about £3500 per annum, equivalent to a il. rate.

A special service in Westminster Abbey will take place on Thursday, the 12th Oct, the first day of the Michaelmas Sittings of the Law Courts, at which the judges and members of the Legal Profession will attend. The Lord Chancellor's reception of His Majesty's judges, King's Counsel, and others will take place in the House of Lords after the service in the Abbey on that day.

Forty races are represented in the Universal Races Congress which opened on Wednesday in London. Mrs. Elmer Black, of New York, the delegate from the American Peace and Arbitration League, in vited the 500 delegates to a reception at Claridge's on Thursday night, when they were to meet Loid Weardale and other leaders of the internatiypal peace movement,

The Admiralty, in response to a petition, have expressed their willingness to permit dockyard men to withdraw from the vo.uotary componeation scheme at any time if they prefer to rely upon the provisions of the Workmen's Compensation Act. The Admiralty cannot, however, accede to the request to prepare a new scheme of compensation.

His Honour Judge Greenwell, at the Newcastle County Court on the 21st inst., gave judgment in a compensation claim wbich be desoribed as unprecedented. A workman was injured by a fall of stone at Bedlington Colliery, Northumberland, and, after having been discharged from the infirmary partly cured, died from bronobilis. His Hoooor held that death was the result of the accident, but said he would be glad if the case went to a higher court.

Mr. Herbert J. Davis, who has for many years past acted as solioitor to the French Consulate in Liverpool, bas recenily been the rooipienu of a letter of thanks from the Minister of Foreign Affairs in Paris, expressing on behalf of the Republic their appreciation of Mc. Davis' many acts of kindness to Frenob people. The letter was accompanied by a very handsome Sèvres ornament sent by the Republic as official recognition of Mr. Davis' servioes.

Lord Alverstone distributed the prizes to the boys aod girls at the Loodoo Orphan Asylum, Watsord, on Monday. Mr. E. H. Bonefield (treasurer) presided. Lord Alverstone, in his address, said that it was important that every boy should be trained in military exercises 80 that be could take bis part if oalled upon in the defence of his country. After the distribution the visitors witnessed a display of gymnastics, drill, and Morris dancing in the grounds.

lo view of the responsibility imposed upon drivers of vehioles by the greater volume of traffic in the streets of London, the Carmen's Union have decided to promote a Bill providing that no person under the age of eighteen shall be licensed for driving conveyances of any description in the London police area or within twenty miles of Charing Cro99. The proposal has the support of the Parliamentary Committee of the Trade Union Congress and the Labour Party, a member of which will introduce the Bill in the House of Commons at an early date. Io view of the urgeoog of the matter the Home Secretary will be asked to take op the Bill.

In the Court of Appeal on the 219t inst., before Lorde Justices Vaughan Williams, Fletcher Moulton, and Buckley, an appoal was heard against a refusal of Mr. Justice Channell to grant an jojunotion restraining the Royal Aero Clab of the United Kingdom from suspendiog Mr. Grabam Gilmour's flying certifioite for a month on the ground of his having flown dangerously at Henley during the regatta. After hearing arguments, their Lordebips made an order to the effect that, being of opinion that the action of the committee of the club parporting to suspend Mr. Gilmour's certificate bad not been effectual to suspend the same, they did not think fit to make any order on the motion.

At the Central Criminal Court, on the 20th inst., before His Honour Judge Rentoul, K C., Hans Muller, twenty-eight, on bail, and otbers were io dicted for conspiriog to obtain goods by false pretepcos. Muller, who had been admitted to bail by a judge in chambers, did not appear. Mr. R. D. Muir said it might be news to the jury to know that in cases where the charge was ono of minde meanour, however oertain ono of His Majesty's judges might be that a person applying to him for bail would a bscond, the institutions of this country were such that that person was bound to bave bail and the judge was bound to grant it. Muller, having got bail from a judge jo iker High Court, promptly absconded and the jury would not see him beri The trial was adjourned.

In Appeal Court II. judgment will be delivered in Leels Corporation and anither v. Sugden (Surveyor of Tares) (Saturday)

In Appeal Court I. judgment will be delivered in Mowals Limited v. Hudson Brothers Limited and Batt v. Metropolitan Water Board (Saturday).

In the Kiog's Bench Division no further jury actions will be taken during the present sittinge.

The judges of the Sapreme Court will rise for the Long Vacation np Monday next, the 31st inst.

Mr. Justice Darling was the only judge of the King's Bench Division sitting in court last Saturday.

Mr. Justice Phillimore having finished the business at Guildford, on tbe South-Eastern Circuit, last Saturday returned to town and took bis seat in court on the following Monday, proceeding with the Bankruptoy list.

Mr. Justice Lawrance will go the South-Eastern Circuit at the enguing autumn assizes. The commission daye, however, have not yet been fixed.

Mr. Justice Avory and Mr. Jostice Lush will go the Northern Circuit at the ensuing autumn ansizes, but the commission days have not yet been fixed. Mr. Justice Avory will go the first part of tbe oircuit alone until Liverpool is reached, when he will be joined by Mr. Justice Lush.

There will be no desejons held at the Central Criminal Court during the month of Augast. The next sessions will commence on Tuesday, the 5th Sept, next, at 10 30.

She July adjourned Quarter and General Sessions were opened on Tuesday last, at the Sessions-bouse, Newington, before Mr. Robert Wallace, KC. (obairman), Mr._Loveland Loveland, K.C. (deputy obairman), and other justices. The calendar contains the names of 128 persong, eighty-eight beving been committed from the north eide and forty from the south side of the Thames.

An intermediate session for cases arising in the county of Middleser will commence on Wedo esday next, the 2nd pror, at Caxton Hall, Westminster, at ten o'olock. There will be po sitting at the Mayor's Court during the month of Aagust. The September Sittings are fund for Wednesday, the 29th Sept. Dext, at 10 30. - Sir James Paget, KC., is actiog as deputy judge at the City of London Court.

Mr. Henry Edward Duke, K.C., M.P., has accepted the presidency of "The Devonians in London.”

After Divino gervice to-morrow Lincolo's-ino and Gray's.ino Cba pels will be closed for the Loog Vacation,

Mr. Jobo Biglaod Wood. barrister-at-law, who died in May last, left an estate of the gross value of £18,402.

Lord Justice Kennedy aod Lord Jastice Vaughan Williamg bare rogerred apartments at the Hotel Klinger, Marienbad, for the begia. ning of August.

It is now definitely decided that Mr. Arıbur E. Gill will next week jea vo Greenwish and Woolwich Courts aod that Mr. Pickersgill will succeed him. Mr. Gill goes to the Thames Court.

Mr. Edward Hare Pickeregill, the newly-appointed metropolitan police magistrate. took the oath of allegiance and the judicial oath before the Lord Chief Justice on the 21st jant.

For many years past great inconvenience bas been caused to the members of the loper and Middle Temple by the west gate being closed during the Vacations. It is hoped that this gate will be allowed to remain open during the coming Long Vacation.

The report of the Departmental Committee on Fares was issued on Wednesday. Its cbief recommendations are that there should be no change in the tariffs and that extras should belong to the drirere.

The advance party of the Into or Court Officers Training Corps left Londoo on Thursday morning, under Lieutenant A. A. Bethune, for Longmoor, in the Aldershot command, to preparo camp for the main body of the corps (cavelry and infantry), arriving to-day (Saturday)

Secon' Sheet.

[ocr errors]
[ocr errors]


« EelmineJätka »