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September 2, 1911.
"THE LAWS OF ENGLAND."
By the EARL OF HALSBURY and a Distinguished Body of Lawyers.
Managing Editor : T. WILLES CHITTY, Esg.
Table of Contents of two more Titles contained in Volume XVII.
I TURNER (app.) v. HOLDER (resp.) –
Bread - Weights Proper and
KENSINGTON ROYAL BOROUGH
COUNCII. - Local government CLARKE T. CLARKE AND LINDSAY.
Repair of footbridge
35 Husband and wife Divorce
REX . SOUTH SHIELDS LICENSING Variation of marriage settlements 1
JUSTICES: Er parte MORRISON ROSE , MORRISON AND MASON
Licensing - Second offence" LIMITED.-Employer and workman Forleituru of licence
41 -Deuth caused by accident-Uom
LONDON COUNTY COUNCIL (apps.) v. pensation-Claim by dependabte ... 2
-Revepue HUTCHINS BROTHERS ROYAL
Licenco duty-Hackney carriage EXCHANGE ANSURANCE.--Insurance Oab proprietor...
46 (marino)- Inchmaree cause
6 HIGH COURT OF JUSTIOR. OHANOERY DIVISION.
LEADING ARTICLES, &c. EDMONDSON », COPLAND. - Mortgagor and mortgagee - Demand for payment off-Redemption
8 TO READERS AND CORRESPONDENTS... 395 SOLOMON . GEORGE ATTENBOROUGH LAIDING ARTICL 88. -Topics of the
AND SON.-Exocutor-Administr&- Week-Noteworthy Decisions of tion--Pawnbroker
the Judicial Year.......... Re EARL OF STAMFORD AND WAR- I 8188 NOTES
.................................. 399 RINGTON: PAYNK T, GREY.-High- COMMENTS ON OASE........................ 3999 ways-Higbways repairable r. tione
X: 9 tenuræ-Repair of
OCCASIONAL NOTER ............... IN TBE MATTER OF W. AND G. DU PARLIAMENTARY SUMMARY.- Topics 401
CROS' APPLICATIONS FOR REGISTRA- COUNTY COURT8.- Sittings of the TION OF TRADE MARKS, - Trade
Courts-Recent Decision : Williams mark-Registration ...........
and Son v. George Allen and Wife 40!
GENERAL INTELLIGENCE. - Lord KING'S BENCH DIVISION.
James of Hereford 88 & PariiaATTORNEY-GENERAL V. SECCOMBE.
mentarian--The Lawyers of Charles Revenue - Estile du'y - Gift of Dickens-The Law of th, Airhouse and lands-Donor allowed to
Appointments under tba Joint reside io house
Stock Winding-up Acte-Creditors REDHILL GAS COMPANY (apps.) v. under Estates in Chancery-Credla REIGATE RURAL DISTRICT COUACIL
tors under 22 & 28 Vict. c. 85
403 (resps ). - Gas Undertakers PROMOTIONS AND APPOINTIENTS opening bighway...... 24 OORRESPONDENCE
40N REX r. SUNDERLAND CORPORATION.
NOTES AND QUERIES Local government-Council of &
LAW STUDENTS' JOURNAL.- The Law county borough-Membersbip of Society
409 committee--Powor to resign
OBITUARY. - Mr. Harley
B, N. Mothersole - Mr. John SALT (app.) v. TOMLINSON (resp ).
i Public health - Unsound meat
Gowling Sezed in the possession of
THE GAZETT R8.............................******
409 purchaser 31 BIRTHS, MARRIAGES, AND DEATHS
By W. F. A. ARCHIBALD, Esq., a Master of the Supreme Coart, King's
Bench Division, and R. E. Ross, Esq., LL.B., Barristers-at-Law.
II. Interpleader in the High Court.
The Law and the Lawyers.
Specimen Pages and full Prospectus on application, BUTTERWORTH & CO., 11 & 12, BELL YARD, TEMPLE BAR, LONDON.
MR. JUSTICE HORRIDGE sat for the last time as Vacation judge on Wedoesday, the 30th ult., and for the second half of the Long Vacation Mr. Justice Lush will occupy the position which Mr. Justice HORRIDGE vacates on Tuesday next. Once again the cases before the court were altogether unimportant.
To Readers and Correspondents.
The right to employ the military for the purpose of quelling a riot, and to resort to the use of firearms for that purpose, was further exemplified by the verdict of "justifiable homi. cide” returned by the jury at the corner's inquest upon the two men killed by the fire of the troops at Llanelly. That the verdict was the only possible one was clearly shown by the evidence given at the inquiry, and the order to fire under the circumstances was abundantly justified.
fi i ;
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Vol. CXXXI.-No. 3570.
The law of libel as it affects newspapers has naturally been a subject of discussion during the present week at the meeting of the Institute of Journalists. No doubt the result of the case of Hulton and Co. v. Jones (101 L. T. Rep. 831; (1910) A. C. 20) was an unpleasant surprise, but the soundness of that decision cannot be doubted. Owing to the wide publicity given to a defamatory statement that appears in the columns of a newspaper, the verdicts of juries have clearly shown their disposition to treat libels in the press seriously, and, although we do not for one moment suggest the existing law should not be amended in some respect, such amendments, to our mind, ought to be directed more towards the existing practice and procedure in actions for libel and slander rather than the principles which apply to the law of defamation itself.
A Bill has been introduced in the House of Commons by a series of twonty-two departments of legislation into which the which contains several clauses which if passed into law
Bill ompowers the Scots Parliament, to embark. Again, the Bill would do much to mitigale the grievances that at present
employs a general phrase, for, after indicating these twenty-two items exist. In the first place, money cannot be paid into court
it ends off with the phrase, “ generally, all matters of an exclusively in such actions with a denial of liability. We have always
local character.” It is, however, in our complex modero life pot easy
to say off-hand that these twenty-two items are capable of being been at a loss to understand why this should be so, as money
regarded as “ozolusively local ” when we consider the peculiar can be so paid in in other actions where character is quite
relationship subsisting between England and Scotland, for as much at stake, and by the Bill it is proposed to provide questions arising out of some of
these matters geem of a that
character in which a national rather than & parocbial policy Notwithstandiog any provision contained in Order XXII., r. 1,
should be followed. Amongst these items we find public health : of the Rules of the Supreme Court, the defendant in any action of oriminal law, marriage and divorce, the administration of' libel or slander (or the plaintiff where a defendant countor-claims for
justice, bankruptcy, education, prisons, lunacy, railways, lighthouses, libel or slander) shall be at liberty to pay money into court as in all
canals; other actions, either with or without a defence denying liability.
the acquisition, holding, disposition, and descent of land; hours of labour, industrial disputes, intoxicating liquors, and so forth.
It is proposed that the King should be represented in Scotland by a ANOTHER clause provides that a verdict for nominal damages Lord High Commissioner, and by bim the Parliament is to be gume may be a good cause" for disallowing costs, but such a pro- moned, prorogued, and dissolved. It is to be elected by the vision would hardly be necessary if the preceding one were
existiog constituencies, each of which shall return two members,
The universities are, placed upon the statute-book. It is also proposed to amend
except Dundee, which is to poseeee four. the practice with regard to the consolidation of actions, and
however, to be denuded of representation. Each elector is to have to amend sect. 5 of the Law of Libel Amendment Act 1888
two votes, except in Dundee, where he is to have four. There is to be by adding a clause as follows:
& power to impose taxes other than customs and excise duties and
there is to be a separate Scottish Exchequer and Consolidated Fuod. It shall also be competent for the judge or the court, in the case of The remaining clauses are mainly administrative, but they are at the the same or substantially the same libel published simultaneously in a number of newspapers or copied shortly after publication, to give
same time most higbly controversial. The principles, however, notice to the plaintiff in any action or actions arising out of such
enuncia ted in the leading objects above indicated are such that it libel, that a period stated in such notice will be allowed for the dis. will be largely on these that the Legielature must deoide the fale of covery of any further publications of such libel that may have taken this Bll. place, in order that tho whole of the actions arising out of such libel may be tried together, and after the expiration of such period of discovery no further actions shall be instituted in respect of the publication of such libel except for the recovery of special damages. NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR. Such a provision would put an end to a multiplication of
(Continued from page 382.) actions, while at the same time the defamed person's rights The number of important LICENSING cases has during the past would be duly safeguarded.
year suffered considerable diminution, and few call for any comment here, Hales v. Buckley (104 L. T. Rep. 34; (1911) W. N. 32)
was a case where the respondent held a wholesale beer-dealer's A far more difficult question is raised by the proposal that
licence empowering him to sell not less than four and a half gallons
of beer at one time for off consumption. On a certain date he sold to impecunious plaintiffs in libel and slander actions should be B. eighteen quart bottles on the terms that B. should store the bottles required to give security for costs. We quite agree that
and deliver them as the purchaser should require. Eighteen bottles newspapers have in the past suffered heavily, when successful,
were appropriated to this sale by the respondent, and the purchaser's from having to bear their own costs of the litigation owing
name was put on them. Small sales were made, the last being some
seven weeks later. The respondent in respect of this last sale was to the insolvency of their opponent. But newspapers do not summoned under the Licensing Act 1872, s. 3, for selling beer stand alone in this unfortunate position, but it is shared by
by retail without a licence. The Divisional Court thought that the
sale was complete at the first transaction, and consequently there every litigant whose opponent cannot pay the costs was no sale of a less quantity than was authorised by the wholesale should he fail. The Bill contains a clause to the following
licence. Rex v. South Shield: Licensing Justices (130 7. T. Jour. 506; effect :
(1911) 2 K. B. 1) raised the question whether upon the application
for the renewal of the licence the justices were entitled to treat In any action brought for a libel contained in a newspaper, if a it as forfeited, and in holding that it could not be renewed, but that judge at chambers is satisfied by evidenco brought before him that the proper course was to apply for a new licence. There were two the alleged libel is of a trivial character, and that the words convictions for two offences under sect. 3 of the Act; in neither complained of bave been published in good faith, he may at bis case did the conviction say that it referred to a second or subsequent discretion make an order staying all proceedings in the action, offence, but they had both been obtained at the same time. The unless within the time named in such order the plaintiff give full law automatically entails the forfeiture of a licence on conviction security for the defendant's oosts to the satisfaction of a master of for a second offence. Lord Alverstone thought that the fact that the Supreme Court. An action stayed under this section for a year there were two convictions against the applicant for two offences sball at the end of that time and without order stand dismissed with committed on the same day was not enough to show that there costs, and the defendant shall be at liberty to sign judgment for his had been a “second offence" so as to bring about forfeiture. The costs.
learned Lord Chief Justice did not consider that the justices could We, however, do not think that there is much chance of its
rightly regard these two convictions as being one or other of them
necessarily concerned with first or second aftences. acceptance. While naturally having every sympathy with Two very interesting decisions on the STATUTE OF LIMITATION'S may the Press, we have grave doubts whether the Legislature be here mentioned. The first of these is lle Hobinson; McLaren v. will consent to ameliorate their position to any great extent.
Public Trustee (104 L. T. Rep. 331 ; (1911) 1 Ch. 502), heard by The view taken by juries merely reflects the general
Mr. Justice Warrington. A certain annuity granted in 1675 by
Charles II. had become vested in one G. R., purporting to bar an opinion of the country at large, and the most that can be entail. Later on a doubt arose as to this bar, and consequently expected is some change in existing procedure.
the trustee of the annuity declined to pay to an assignee. It was eventually decided in an action that it was not barrable. Under
a common mistake of fact the trustee had paid for a time to one A CORRESPONDENT writes :
restui que trust money due to another cestui que trust.
that when one cestui que trust brings in the Chancery Division an The text of the Bill relating to the government of Scotland indicates action against another cestui que trust to recover money wrongly a large number of most controversial proposals. The Bill is backed
paid, the proceedings are like a common law action for money (inter alios) by Sic HENRY Dalziel, Mr. Munro FERGUSON, and Mr.
had and received, and the claim is barred after six years. If the Wason. The general object is the establishment of a Soots Parlia
claim arose in an action where the court was administering the
trust and there were assets to which the overpaid aestui que trust ment. Their powers are not to extend to making laws affecting the was entitled, the court would adjust the accounts as between the status of the Crown, declarations of peace or war, the army, navy, or parties entitled, and lapse of time would then prove no bar. Turner territorial forces, treaties, titles of honour, prizos, or offences against
v.Alidland Railway Company (104 L. T. Rep. 347; (1911) 1 K. B. international law, but they are to be empowered to make laws" for
832) was a case of compensation under the Lands Clauses Act, the peace, order, and good government of Scotland." Pausing there,
where the defendants refused to pay and on arbitration were ordered
to pay £10 as compensation and £80 for costs. we find an exceedingly vague and elastio sphere of activity, and it
A County Court
action was brought to enforce the award, and the defendants set is very doubtful whether this ambiguity is at all restricted in practice up as a defence that the action was barred by the Statute of
It was held
Limitations, because the works had been completed in April 1903 and no claim made until Aug. 1909, the claimant being until this latter date unaware of her rights. The judge held that the cause of action arose on presentation of the claim and the action was in time. On the making of the award a cause of action is founded for the first time, and the statute runs from that date and the period is six years. Gregory, v. Torquay Corporation (1911) W. N. 130) may be lightly dismissed as showing that in County Court practice when a claim is made for the death of a son against a public authority and no action is commenced within six months as required by sect. 1 of the Public Authorities Protection Act 1893. a defence that a claim is barred by “a statute of limitations” is good enough, and it is not necessary to particularise a special statute, because the provision as to six months was in effect a statute of limitations. Re Metropolis and Counties Permanent Investment Building Society; Gat field's case (104 L. T. Rep. 382; (1911) 1 Ch. 698) likewise requires but short notice. The member had mortgaged leaseholds to the society, and the latter had eventualıy to enter into possession. The deed was held by Mr. Justice Neville to be in effect a mortgage, though in form a trust, and the Statute of Limitations was held to attach when the society took possession, and it was further held that the annual accounts of the society, which included the property into which the society had entered, were not acknowledgments of title of the mortgagor within the Real Property Limitation Act 1874, s. 7.
The subject of LOCAL GOVERNMENT is becoming of wider scope and importance each successive year, and the decisions tend to become more numerous and more diversified in character. It is necessary under these circumstances to exercise restraint in choosing the points for review. Greville-Smith v. Tomlin (104 L. T. Rep. 816; (1911) 2 K. B. 9) was a case where the dispute turned on whether A. was qualified to be a member of a district council under the Local Government Act 1894, s. 46. The corporation of a borough and an urban district council formed a joint committee for a certain purpose. A. was appointed their salaried clerk; the funds out of which he was paid were forthcoming by joint contributions from the two bodies. It was decided that A. held a paid office under the district council” and was therefore disqualified. Carshalton Urban District Council v. Burrage (104 L. T. Rep. 306; (1911) 2 Ch. 133) may be referred to in cases where the question arises whether, under the Public Health Acts Amendment Act 1907, ss. 3, 30, and 31, a place can be required to be fenced off as a dangerous place." The facts are useful as indicating points to be considered in boundary questions, and especially where there is some grave doubt as to situations fronting, adjoining, or abutting on " a street. Dawson and Co. v. Bingley l’rban District Council (104 L. T. Rep. 659; (1911) 2 K. B. 149) was a case where the defendants had put up a plate purporting to indicate the position of a fire plug, but did so with such carelessness that it was nearly 7ft. in
The plaintiff sustained a fire, and the brigade found itself greatly delayed by the difficulty in locating the plug, and the damages consequent upon the fire were largely augmented. The Court of Appeal have held that setting up this misleading indicator was an act of misfeasance and not merely of non-feasance, and the defendants were held responsible for the extra loss caused by a breach of their statutory duty “to paint or mark on the buildings and walis within the streets words or marks near to such fire plugs to denote the situation thereof” (vide Public Health Act 1875, s. 66). Another case touching on the problems attending fire arose London County Council v. Cannon Brewery Company (103 L. T. Rep. 574; (1911) 1 K. B. 235). The London Building Acts Amendment Act 1905 (5 Edw. 7, c. ccix.) by sect. 12 enacts that every existing building to which the preceding sect. 10 applies "and every other existing building except a dwelling-house occupied as such by not
than two families” is to be provided, if having more than two stories, with certain appliances to enable access to be gained to the roof. A public-house, fully licensed, had four stories, and the house was inhabited by the tenant, his wife, three children, a servant, and the members of the bar staff, in all thirteen persons. The question was whether such a house was a dwelling-house inhabited by one family and outside the section above mentioned. A Divisional Court held that it was, for it was impossible to distinguish between the tenants, servant, and the members of the public-house staff. Another important point to notice, now that so much street widening is being undertaken, may be mentioned as arising in Wandsworth Borough Council v. Gold's (103 L. T. Rep. 568; (1911) 1 K. B. 60). In exercising the powers conferred by sect. 105 of the Metropolis Management Act 1855, the council sought to pave an old road which had become a new street and so to alter the respective widths of carriage-way and footpath as to cast on frontagers the cost of so doing. It was held that the council had no power so to act. Bolton v. Everitt (noted ante, p. 320), decided just before the court rose, illustrates the need for more explicit by-laws in urban districts if attempt is being made to prevent the waste of road space by negligent drivers of slow-moving vehicles. A man was held to be on the left side of the road when his off-side wheels kept within the centre line, although he had a space of 10ft. on the near side vacant.
We now pass to another set of subjects of outstanding interest, all of which fall under the generic heading of MASTER AND SERVANT. George v. Davies (104 L. T. Rep. 648; (1911) 2 K. B. 445) is really very important, for it deals with a so-called custom," in regard to which it has been impossible to form any very definite opinion. The plaintiff was a domestic servant, and she entered into the
defendant's household on Nov. 3 at a yearly wage, paid monthly. There was nothing explicitly agreed upon in regard to notice. in a fortnight's time she gave notice to leave at the end of the first month, and left on Dec. 3. The defendant refused wages for the month, whereupon the plaintiff commenced County Court proceedings. The plaintiff relied upon a custom that either party could end the service at the conclusion of the first fortnight, but she called no evidence in support of it. The learned County Court judge stated that he had previously taken judicial cognisance of the custom, and on appeal the Divisional Court thought the County Court judge was, under the circumstances, entitled to take such notice, and, further, that, apart from the custoin, the plaintiff, even though she left the defendant's service wrongfully, was entitled to recover the wages which had already accrued to her. A case illustrating a master's liability for his servant's slander may be mentioned in Glasgow Corporation v. Lorimer (104 L. T. Rep: 354; (1911) A. C. 209). The pursuer (the case was a Scotch appeal) proved that G., who was in the corporation's service as a tax collector, while exercising his duty, had demanded a tax and was tendered the balance due thereon. G. refused to accept the sum, demanded former receipts, and then accused the pursuer with having altered one so as to defraud the corporation. He threatened the pursuer with criminal proceedings, and repeated in another person's house the charge he had made. It was held by the House of Lords that no cause of action was disclosed, for there was nothing to show expressly or by implication that an expression of opinion by G. as to the genuineness of a receipt was within the scope of his employment. In regard to compensation cases, our readers have been kept up to date by comments as and when decisions of note were pronounced. We may then very briefly recall the chief of these cases, and refer our readers to our earlier comments. Skailes v. Blue Anchor Line Limited (103 L. T. Rep. 741 ; (1911) 1 K. B. 360) dealt with the meaning of the word “ remuneration” in sect. 13 of the Workmen's Compensation Act 1906 (in this section of our review hereinafter described shortly as “the Act"). This word is to be regarded as synonymous with the phrase earnings used in the Act, and, in estimating a purser's remuneration, it is necessary to take into account a bonus received at the end of a voyage, at a fixed rate per month, when everything was reported to he satisfactory. Further, it is necessary to take into account sums received by him by way of perquisite on the sale of whisky. Pierce v. Provident Clothing and Supply Company (104 L. T. Rep. 473; (1911) 1 K. B. 997) shows that an accident sustained by a collector and canvasser whilst cycling in the course of his work was one to be deemed to arise “out of the employment within sect. 1 (1) of the Act. Astley v. R. Erans and Co. (104 L. T. Rep. 373; (1911) 1 K. B. 1036) extracted a principle from the Court of Appeal to the effect that, in considering what is sufficient evidence in a fatal accident to justify an inference that it had arisen “out of and in the course of the employment," it is necessary to distinguish between cases where death occurs at a time when the workman is engaged in his employer's work and cases when the workman is free to do what he likes without breach of contract. Where the last acts known are consistent with the continuance of work for the employer, the onus is on those who allege a cessation of work for the employer to prove their case. Kitchenham v. Owners of Steamship Johannesburg (noted ante, p. 125; (1911) A. C. 417) was a decision by the House of Lords, and it was held that a sailor drowned on returning to his ship while crossing the gangway had sustained an accident arising in the course of his employment. In another case, Hewitt v. Owners of the Duchess (noted ante, p. 173), the sailor was also drowned whilst returning to his ship, but there was no evidence how he fell into the water. Held, owners not liable. Another case, Riley v. William Holland and Sons Limited (104 L. T. Rep. 371 ; (1911) 1 K. B. 1029), showed that a woman tripped and sustained injury on the stairs of a mill on Friday, being pay day. The usage of the mill was to make up wages to the Wednesday previous. It was held to be an accident arising out of and in the course of the employment. Warner v. ('ouchman (103 L. T. Rep. 693; (1911) 1 K. B. 351) was a very difficult case, and it raised the question whether frostbite suffered by a journey. man baker while out on his employer's rounds was an accident. It was held that, even assuming that there had been an accident, there was no peculiar danger encountered beyond that experienced on that day by other persons engaged in outdoor work, and it was held that the accident had not arisen out of the employment. Lord Justice Fletcher Moulton dissented from the above, and he laid it down that physiological injury resulting directly from work and in the reasonable performance of it is an injury by accident, and if the employment entails more than ordinary exposure to heat' or cold and injury follows, then that injury arises “ out of the employment.”
Lees v. Dunkerley (103 L. T. Rep. 467; (1911) A. C. 5) settled finally a question which has frequently been the subject of professional doubt-the question, viz., whether the doctrine of common employment applies as between fellow workmen. The facts were thesa : The respondents employed the appellants to guard some dangerous machinery. They acted negligently in regard to it, and through this cause a boy was seriously injured. Each of the appellants was convicted of a breach of the regulations under the Factory and Workshop Act 1901. A weekly sum was, on an arbitration appointed by the County Court judge, ordered to be paid by the respondents. The learned judge held that the appellants were liable to indemnify the respondents. The Court of Appeal atfirmed this, and held that the common employment" defence does not apply where injury is caused to a servant by the breach of an
absolute duty imposed by statute upon his master for the servant's benefit. The House of Lords has concurred. Lord Loreburn thought that a dangerous and mischievous principle was sought to be set up:
A man is responsible for his own negligence. The opposite view would entail that anybody could have a free hand to neglect his duty to his fellow-servant and escape with impunity from liabilty for damages for the consequences of his own carelessness or neglect of duty. Where the accident, however, in respect of which an employer has paid compensation is caused by the combined negligence of his own and other people's servants the employer cannot obtain an indemnity against that other person : (Cory and Son Limited v. France, Fenwick, and Co., 103 L. T. Rep. 649; (1911) 1 K. B. 114). Horn v. Lords Commissioners of the Admiralty (103 L. T. Rep. 614; (1911) 1 K. B. 24) lays it down that a workman who accepts a scheme of compensation certified by the Registrar of Friendly Societies is outside the Act altogether, and his rights, should some accident occur, are to be solely determined by the scheme. Two cases on the causes of death may be very briefly dealt with. Carolan v. Harrington (noted ante, p. 104; (1911) W. N. 134) shows that where there is a conflict of medical evidence a County Court judge can refer to a medical referee. It was urged that where, as here, death had supervened, no such reference was legal, but the Court of Appeal overruled such a narrow interpretation. Hawkins v. Powells Tillery Steam Coal Company (104 L. T. Rep. 365; (1911) 1 K. B. 988) decides that angina pectoris may give no cause for an award in the applicant's widow's favour where the husband was an elderly man whose heart was in a diseased condition entailing a possible fatal attack at any moment under slight exertion. Ball v. William Hunt and Sons Limited (104 L. T. Rep. 327; (1911) 1 K. B. 1048) was a case where a workman had lost the sight of one eye and subsequently the same eye met with . further accident which rendered it requisite to remove the eyeball. Being now recognised as a one-eyed man, he could not obtain work, although his capacity was in reality precisely what it had been before. The Court of Appeal by a majority held that injury which only made patent a pre-existing incapacity did not entitle the workman to compensation. Lord Justice Fletcher Moulton, in dissenting, thought that incapacity included such a case, and that a lessening of earning capacity was enough, although there was no diminution of physical capacity. McDermott v. Owners of Steamship Tintoretto (103 L. T. Rep. 769; (1911) A. C. 35) was before tho House of Lords. M., a sailor, sustained an accident and was placed in a New York hospital, and was sufficiently recovered to be returned to England in about ten weeks. The shipowners paid wages from the date of the accident until he entered the hospital. They then paid surgical and maintenance expenses there. They were also willing to pay compensation in respect of his incapacity for work from the date of his return to England, but they argued that in assessing the compensation the County Court judge should regard the eight days' wages received from them between the date of the accident and the reception in hospital. The House of Lords, reversing the Court of Appeal, held that in respect of the payment of these wages or of maintenance and other expenses it is not necessary to have regard to the same in fixing the amount of the weekly payments. The case of Smith v. General Motor Cab Company Limited (1911) A. C. 188) raised a most interesting point, and discloses a hardship. The question was as to the relationship which subsists between a taxi-cab driver and the owners of the cab, and the consequent claim for compensation for accident. The evidence satisfied the House of Lords that the relationship was not that of master and servant, but that of bailor and bailee, and consequently the appellant, who was injured while driving, was held without title to compensation. New Monckton Collieries Limited v. Keeling (noted ante, p. 267) shows on the authority of the House of Lords that there is no presumption of law that a wife is a dependant upon her husband, but that it is in each case a question of fact.
MONEYLENDING cases have not been so prolific this year, and only brief mention need be made of this subject. Re Robinson; Clarkson v. Robinson (103 L. T. Rep. 857; (1911) 1 Ch. 230) is one of the chief decisions. The Court of Appeal there determined that a purchaser or assignee for value who has notice of charges or securities which are
void under the Moneylenders Act 1900, s. 2, is not in a better position than the original holder. The Act gives no protection to a bona fide assignee for value without notice except in sect. 1, sub-sect. 5. Whiteman v. Director of Public Prosecutions (104 L. T. Rep. 102; (1911) 1 K. B. 824) was a case where the appellant carried on a moneylending trade in the name of Hill at one address and under the name of Cobb at another. He was duly registered as Hill, and by a mistake of the registration authorities he was also registered as regards the other business. The question was raised on an information charging him with carrying on business as a moneylender in more than one name whether he could be rightly convicted, or whether the double registration was an answer to the charge. Lord Alverstone thought that it was no answer. Mr. Justice Avory, concurring, added that if a moneylender induces the authorities to register him in more than one name ho will not be protected from the consequences of carrying on business in those registered names. The object of the legislation on this subject is to protect the borrower, and to prevent a person who has been dealing with a money. lender under the name of Hill from being deceived into thinking that when he goes to Cobb he is dealing with a different person.
MORTGAGE cases come next in our alphabetical arrangement. In Hall v. Hall (104 L. T. Rep. 529; (1911) 1 Ch. 487) Mr. Justice
Warrington had a rather difficult question to solve. The plaintiffs were executors of a wife's will, and they sought a declaration that they were entitled to a moiety of certain land included in a mort. gage. The defendant was a transferee of the mortgage, and was the heir-at-law of a husband. The plaintiffs, as representatives of a wife, claimed against the husband's heir-at-law on the ground that the husband's sharo of one moiety of the property in his own right was primarily liable for the debt, and that the wife's moiety was discharged from it. It was held that when a wife concurs with her husband in mortgaging her property and the money is paid to the husband, as it appeared on the face of the document, the court will infer that the debt is his debt, unless there is evidence to rebut this, and the wife's property will be deemed to be surety for it. The rebuttal may take the form of shorfing that the money was in fact paid to the wife in such a way as to become her separate property, or that the husband applied it for her benefit. On the subject of redemption Mr. Justice Eve had to consider the implied liability of a purchaser of an equity of redemption to indemnify the vendor against the mortgage debt : (Mills v. United Counties Bank Limited, 104 L. T. Rep. 632; (1911) 1 Ch. 669). The plaintiff had certain contingent interests under his father's will, and these were in mortgage to the bank and to his father-in-law. The bank sued the plaintiff and his partners in business for the recovery of money owing by them. The facts are intricate, and it is not for our purposes needful to set them out fully; but the principle emphasised in the decision is that the rule in equity, throwing upon a purchaser of an equity of redemption the implied obligation of indemnifying the vendor against the mortgage debt, is conditional upon the interest vesting in possession, and until that happens a person who claims the benefit of the implied covenant cannot sue. Where the assignment deed provides for an express and limited indemnity, the fuller indemnity otherwise implied is excluded. Rourke v. Robinson (103 L. T. Rep. 895; (1911) 1 Ch. 481) turned on the subject of recon. veyance. On the 17th Aug. a mortgagor with other persons attended at a certain place by appointment with the mortgagee's solicitor to tender the sum due on the mortgage, and required that the recon. veyance should then be handed over. It transpired that these were not ready, and the mortgagor declined to hand over the money without these documents. The mortgagee's solicitor threatened to proceed with a sale under contemplation, and refused to withdraw notices unless payment was made. The mortgagor sought redemption'and an injunction to restrain the sale. Mr. Justice Warrington has held that it is a mortgagee's duty on being paid off, and contemporaneously with the payment, to hand over the deeds, together with a formal reconveyance. Consequently the court refused to allow the mortgagee in this case interest and costs subsequent to the 17th Aug., the date of the tender, and ordered him to pay the costs of the action. The case makes it clear that the courts will not take too narrow a view of a tender, such as that above, being conditional. It was not a tender of a less sum, but it was one for the full amount, and only “clogged" with a stipulation for an executed reconveyance, a thing to which a mortgagor is entitled. For a form of order where one of two mortgagees refuses to reconvey and the master is appointed to reconvey, it may be useful to briefly refer readers to Holme v. F'ieldsend (1911) W. N. 111).
There are very few MOTOR-CAR cases worth comment this year, and the most important of these from the legal point of view is Brown v. Crossley (104 L. T. Rep. 429; (1911) 1 K. B. 603). A motorist's back lamp was out, and he was convicted and ordered to produce his licence for indorsement. He declined to do so, and was further charged with an offence under sect. 4 of the Motor Car Act 1903. It was held by a Divisional Court that this was an offence, and that the charge relating to the lamp was connected with an offence in connection with the driving of a motor-car' within sect. 4. The Lord Chief Justice in this case makes a useful review of certain earlier decisions, and especially dwelt on one for which he was himself responsible, and the learned judge differentiates this case from those offences of a minor character, such as the accidental going out of a lamp where a motor was standing in the road, and he held that "it is going much too far to suggest that liability to have the licence indorsed." the mere accidental going out of a lamp will result in a
(To be continued.)
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COMMENTS ON CASES.
On the ocoasion of a recent divoussion by tho members of the Drogheda Corporation as to the filling up of a post that had been vacant for some time, one of the councillors casually acked the mayor what was tho meaning of the word “job.” The mayor was upable to afford the required information, and the town clerk was tben requested to assist the corporation. Ho promptly produced a dictionary and proceeded to read to his board the following definition of “job.”: “A sudden stab with a pointed instrument; to strike or stab with & sharp instrument.” This definition was considered irrelevant, one of the members remarking that what bad been read was the definition of " jab.” The following further definition was then read : “A pieco of work, specially of a temporary nature ; anything to be done, whether of moro or less importance; an undertaking professedly for the publio good, but really for one's own." This definition seemed to satis'y the curious coudoillor, and the discussion ended.
A RATHER unusual point came before Mr. Justio. Dodd in the case of York.street Flax Spinning Company v. Harbison, wbioh oame beloro bim at the recent Belfast Assizes. The plaintiffs bad purchased from the defendant a quantity of flax in market overt. The defendaot subsequently was iodioted for the larceny of the far from one Robiason, and for receiving, and he was fouod guilty of receiving the flax koowing it to have been stolen and convloted. At the trial of the indiotment the judge made an order for the return of the flas to Robioson, and the plaintiffs paid Robinson the agreed value of the flas. Tboy thod, relying on sect. 100 of the Laroody Act 1861, sued the defendant for the amount that they had paid him. The defondant, resisting this olaim, relied upon seot. 24 (2) of the sale of Goods Act 1893. and contended that a good titlo to the lax bad vested in him and that it could not be dovested except by a convio. tion 'for larceny. Mr Justice Dodd decided against the defendant, holding that the conviotion for receiving was onough, and that Beut. 100 of the Laroepy Aot 1861 covered the case.
A CASE of some importance to railway travellers (Simmonton v. Beljast and Co. Down Railway) was deoid ed recently by Mr. Justice Dodd. The plaintiff sned the defendant company for the cost of a conveyance from Comber to Belfast under the following circumstanoes : Tbe plaintiff and bis wife had travelled by the defendant oompany's train from Belfast to Comber. The last train from Comber to Belfast leaves the former place at 10 40 p m., and the plaintiff was on the “up” platform of Comber Station at 10.31 p.m, intondiog to retaro to Belfast by the last traio. At 10.35 p.m. a train from Belfast arrived at the "dowo", platform, and for about six minutes previously to the departure of the train for Belfast the oentre line was oocopied by a goods train, so that the plaintiff's view of the "down" pla:form was obstructed. There were no railway officials on the “up” platform. The 10.40 train left the "down” platform, and the plaintiff was obliged to biro a conveyanoo to take bimself and his wilo to Belfast. The learned judge beld that there was negligenoe on the part of the defendant company, and decided in favour of the plaintiff. The Local Government Board for Ireland have received complaints from time to time from boards of guardians in different parts of Ireland as to the action of magistrates at petty sessions in refusing to adjudicato io prosecutions brought at the instaboo of guardians where the latter were not represented by a solioitor. The board in their circular letter of the 27th April 1877 set out the opinion of the then law adviser (now Lord Justice Holmes) that where ihe guardians are themselves named as complainants in the summons, they must appear by attorney, but that in most of the cases in w biob guardians are called
on to prosecute they may avoid the necessity of employing an attorney by not using their own corporate name as oomplainante, and by using that of one of their officers instead, and that in such cases the officer in whose name the summons is brought oan conduot the prosecution himself. In & recept
the Birr Guardians directed their relieving officer to prosecuto a man who had deserted bis wife and obildren. The magistrator refused to allow the relieving offioer to present or conduct the case, and they also refused to stato a 0880 for the High Court. The matter was brought to the attention of the Local Government Board, and that body took the opinion of the Solicitor General for Ireland, who wrote: "It is diffioult to understand the position of the magistrates. Their refusal to bear the complainant—the relieving officer-by himself, without counsel or solicitor, was in direct opposi. tion to tho plaio words of sect. 9 of the Petty Sossions (Ireland) Act 1851. Possibly the magistratos were under the impression that although tho relieving officer was, the complainant, he was named as such merely as the officer of tbe guardians, and that they should be regarded as the real complainante. But this point is against the decision in Duncan v. Jones (16 Cox C. C. 267), where the complainant was an inspector for the Prevention of Cruelty to Animals, and he was bold entitled to conduot the oalo himself.” In the Birr case tho relieving officer applied to the Kiog’s Bonob Division for a conditional order for a writ of mandamus to compol the magistrates to hear tbe case, and the latter, aotiog on legal advice, did not show cause against the order.
In the winding up of a company and the distribution of its property among its shareholders, “ surplus assets" may be words of equivooal import from a legal point of view. But we question whether many ordinary mon of business would be disposed to put any other oopstruction upon them than as meaning assets after discharging all debts and other liabilities of the company, which should include repayment to the shareholders of the whole of the capital subscribed by tbem. In other words, the expression would be treated as equiva. lent to "surplus profite.' The uninitiated would very naturaliy be propo to reason in this way:
A company in the usual course has liabilities and it has assets. The former consist of what it owes to ito creditors and what belongs to its shareholders. The latter are represented by such property as it POBBOSBOU. Tho exoong of the assets over the liabilities constitutes tbe company's " surplus assets.' To the lawyer, however, versed in the various legal decisions on the subjeot, the point is by 20 means 80 casily determined off.band. He is aware that the expression is an ambiguous one, and that it 18 pot a torm of art having a defioite teoboical meaning, as was pointed out in the most recent case in which the question was raised, that of He Ramel Syndicate Limited (104 L. T. Rep. 812). The expression may bave a different meaning from that asoribed to it by persons unacquainted with wbat has been laid down by the courte. According to the intention that has to be gathered from the articles of association of each company, the words may denote the surplus remaining after payment of debts and the costs of the winding-up, irrespeotive of ebare capital. Thus, as was said by Lord Justico Stirling in Re Crichton's Oil Company Limited (86 L. T. Rep. 787, at p. 789; (1902) 2 Ch. 86), in his opioion, prima facie “surplus assets" in the articles of association in that caso meant “ that wbicb remains after the olaims of creditors of the company and the costs of the winding.up bave been satisfied.” lo ebori, the true construction depends entirely upon the meaning to bo attributed to the clause in the articles of associs. tion in wbiob those debatable words appear. The blame for any upcertainty that exists must, therefore, fall apon framers of such clauses who have used, in a wholly erroneous Bense, an expression that otherwise would be perfectly plain. It was in Re New Transvaal Company Limited (75 L. T. Rep. 272; (1896) 2 Ch. 750) tbat the view was expressed by Lord Justice (tben Ms. Justice) Vaughan Williams, sitting as an additional judge of the Chancery Division, that " surplus a:bets” might have an alternative meaning. His Lordsbip there entirely dissented from the suggestion that the term had recognised technical meaning. And in that ca se secoupment of the capital contributed by the shareholders was beld by the learned judge to be essential before the surplus assets were ascertainable. That construction was adopted in Re Peabody Gold Mining Corporation Limiled (104 L. T. Jour. 128; (1897) W. N. 170), and, lastly, in Re Ramel Syndicate (ubi sup.). On the other hand, in Re Sheppard's Corn Malling Company Limited ; Ex parte Lowenfeld (70 L. T. Rep. 3), it was decided by the Court of Appeal that there was no reason for giving the words “surplus assets in one of tbe elauses of tbe Articles of association of a company any other than their primo facie moaping-namely, all the capital of the company, iocluding uopaid calle, which might remain after debts, liabilities, and costs of the company had been digubarged. There, however, the repayment of the whole of the paid.ap capital out of the surplus assets was expressly directed by tho olauso in questioo, so tbat “ liabilities oould not refer to that portion of the company's accounte. Similarly, in Re AngloContinenial Corporation of West Australia Limited (75 L. T. Rep. 157 ; (1898) I Ch. 327), the paid up capital was directed to be provided ior out of the surplus assets by the express words of tho clause relating to the distribution of those å sgets. But to proscribe that puid-up capital shall be provided for out of surplus aseets is seemingly a contradiction in terms. It is the assets, not the " surplus ageete,” that havo to provide for that capital, as well as for any other liabilities of a company. Should ibero be some balance remaining after satisfying those wante, the came would striotly be Burplus aseets." Such a form, however, of surplus assets clauso bas, as was remarked by Mr. Justice Wright in the case last cited, been adopted with variatione sinoo the decision of the House of Lords in Birch v. Cropper (61 L. T. Rep. 621; 14 App. Cas. 525), with the view to avoiding the effect of that decision. But neither in Re Ramel Syndicale (ubi sup.) por in the authorities wbiob were followed in that case was thero ang direction as to pro. viding for the paid-up capital out of the surplus a89ets.
MISCELLANEOUS PRECEDENTS (continued).
Release and Indemnity by Residuary Legatees. THIS INDENTURE made tbe
191 BETWEEN A. B. tbe wife of J. B. of
and C. D. the wife of E. D. of of the first part E. F. the wife of 1. F. of
and G. H. the wife of A. H. of of the second part 1. J. of
of the third pait K. L. of aloreeaid of the fourth part M. N. of of the fifth part 0. P. of
of tbe sixth part Q. R. of in the county of
and 8. T. the wife of A. T. of in the county of
of the seventh part U. V. of in the county of of the eighth part w. X. of
in the county of of the pintb part Y. Z. of
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