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case (1892, A. C. 25) and Derry v. Peek (14 App. Cas. 337) in earlier
editions. The latter case is still referred to in terms which indicate THE LAW RELATING TO HIGHWAYS, HIGHWAY AUTHORITIES, the author's disapproval, and it is noticed that it was decided " by a
BRIDGES, RAILWAYS CROSSING HIGHWAYS, LOCOMOTIVES ON tribunal of whose acting members not one had any working acquaintHIGHWAYS, AND TRAMWAYS. By the late W. C. GLEN, Barrister- ance with courts of equity.” The short statement of the Mogul case at-Law, and by the Editor of the present edition. SECOND gives very neatly the point which was actually decided. The cognate EDITION. By ALEXANDER GLEN, M.A.; LL.B., Barrister-at-Law. case of Allen v. Flood is still undecided by the House of Lords, and Knight & Co.
will furnish material for the next edition. The only important This is a very complete treatise on the law of highways. The first change in the present edition is in the first chapter, where the first part deals with the common law relating to the subject, the second few pages have been re-written, and the leading ideas in the law of contains the statutes carefully annotated and arranged in appro- torts stated afresh. No ingenuity will make it possible to bring all priate groups. Little change has taken place in the law relating to torts under a common head. They represent a bundle of civil the creation and user and liability to repair highways since the injuries which have, by the cbance of circumstances, to be classe d former edition of this work was published in 1883; but the together, and which in the old law were better known by their authorities by whom that law is administered have been materially corresponding remedies. But it is pretty, as Pepys would say, to see affected by modern legislation. Probably the most important change how the law of torts is made by Sir Frederick Pollock to flow from is the transfer to rural district councils of the powers and duties of Ulpian's rule: honeste vivere, alterum non laedere, suum cuique tribuere. the highway authorities in parishes and highway districts which was effected by the Local Government Act, 1894 ; but this transfer is
MINES. still postponed in some counties and where it is in force the powers of the new authorities depend upon those of their predecessors. Mr. THE LAW OF MINES, QUARRIES, AND MINERALS. By ROBERT Glen has therefore exercised a wise discretion in including in his FORSTER MACSWINNEY, M.A., Barrister-at-Law. SECOND EDITION. work those parts of the Highway Acts which relate to the constitu By the Author, assisted by LEONARD SYER BRISTOWE, M.A., tion, powers, and duties of parish surveyors and highway boards. Barrister-at-Law. Sweet & Maxwell (Limited). The special legislation affecting the metropolis and some other
Use of the former edition of this work in practice has shewn that localities does not come within the purview of the book, but with it was comprehensive, careful, and accurate, but perhaps a little too these exceptions it forms a very thorough, and, so far as we can assiduous here and there in registering the dicta of learned judges, judge, an accurate text-book on the law of highways. In a work of and rather lacking in arrangement and in proportion in the conthis magnitude it is indispensable that the practitioner should be sideration given to the various subjects. We are glad to observe a given every facility for readily finding the passage dealing with the marked change in these respects in the present edition. It is altogether particular object of bis quest; in this respect Mr. Glen's book is most
more practical and convenient. Thus the chapter on “Leases” is satisfactory, the index, the tables of contents, statutes, and cases, and much better arranged, and more useful in the information given, than the numerous cross-references are excellently done. The decisions are the corresponding chapter in the last edition. The chapter on quite up to date, and their effect is accurately given.
Support, which has been practically re-written, constitutes a clear and well-arranged statement of the law; and we think that the author
deserves no little credit for his success in dealing with this difficult DISTRICT AND PARISH COUNCILS.
branch of law. Throughout the book the arrangement of matter has THE LAW OF DISTRICT AND PARISH COUNCILS.
been improved, and we find evidence of excellent care in the incorLITHIBY, LL.B., Barrister-at-Law. SECOND EDITION, Effingham
poration and statement of recent decisions and statutes. We think Wilson ; Sweet & Maxwell.
that the book as it now stands is likely to take its place as a complete
and standard treatise on mines. The title of this work is a little misleading. The “ Law of District Councils” would of course include the Public Health Acts, and all the other Acts which district councils have to administer. Mr. Lithiby's
BOOKS RECEIVED. book does not travel over so wide a field, it is, in fact, an edition of the Local Government Act, 1894, and some of the Acts referred to in A Treatise on the Law of Mortgages, Pledges, and Hypothecaamending that Act, with an introduction and notes. The author tions (founded on Coote's Law of Mortgages). By LEOPOLD GEORGE has made a somewhat capricious selection, several enactments which GORDON ROBBINS, Barrister-at-Law, assisted by FREDERICK TRENTare incorporated with the Local Government Act, 1894, find no place in HAM Maw, Barrister-at-Law. In two volumes. Stevens & Sons his book, while other Acts which have only a remote connection with (Limited). district and parish councils are set out in full. For instance, the parts A Selection of the Leading Cases in the Criminal Law (founded on of the Municipal Corporations Act, 1882, and the other Acts which affect Shirley's Leading Cases). With Notes. By HENRY WARBURTON, all elections under the Act of 1894, and are incorporated by section 48 of Barrister-at-Law. Second Edition. Stevens & Sons (Limited). that Act, are excluded from Mr. Lithiby's appendix, but the Agricultural Holdings Act, which merely affects the assessment of compensation where
The Merchant Shipping Acts, 1894-1897. With Notes, Appendices,
Barrister-ata compuleory hiring of allotment land has determined, is set out alınost and Index. By JAMES DUNDAS WHITE, M.A., LL.M., in extenso. The Acts, other than the Local Government Act, 1894, and Law. Second Edition. Eyre & Spottiswoode. also the orders and circulars, are, for the most part, set out in an An Outline of French Law as affecting British Subjects. By appendix in alphabetical order of their short titles ; but in some cases J. T. B. SEWELL, M.A., LL.D., Solicitor. Stevens & Sons (Limited). this arrangement has been departed from, and we find lengthy sections, and even whole Acts and orders of the Local Government Board, put in containing a List of Stamp Duties from 1804 to the present tine,
Waterlow Bros. & Layton's Legal Diary and Almanack for 1898, the form of a note to a section of the principal Act. These defects in with Regulations as to Stamping and Allowance for Spoilt Stamps, the selection and arrangement of the subsidiary 'Acts mar an otherwise useful book. We are glad to find the "adoptive Acts” included in the Filing Deeds and Papers at Public Offices, Table of Succession to appendix, and also the more important of the orders and circulars issued Real and Personal Property, Papers on the Preparation of Legacy by the different Government departments under the Act of 1894. The and Succession Accounts, and Notes as to Preliminary, Intermediate, Lucal Government (Joint Committee) Act, 1897 (passed 6th August), is and Final Examination of Articled Clerks ; a List of Law Reports, absent, but the other amending Acts are included either in the notes or with their Abbreviations and Dates ; an Index to the Public General the appendix. The index is fairly complete ; the printing and paper Statutes from time of Henry III., a Digest of the Public General leave much to be desired.
Acts of Last Session, List of London and Provincial Barristers and
Appointments, Agents, &c. Waterlow Bros. & Layton (Limited).
Paterson's Practical Statutes. The Practical Statutes of the THE LAW OF TORTS: A TREATISE ON THE PRINCIPLES OF OBLIGA- Session 1897 (60 & 61 Vict.), with Introductions, Notes, Tables of
TIONS ARISING FROM CIVIL WRONGS IN THE COMMON LAW; To Statutes Repealed and Subjects Altered, Lists of Local and Personal
and Private Acts, and a copious Index, Edited by JAMES SUTHERBy Sir FREDERICK
LAND COTTON, Barrister-at-Law. Horace Cox.
Statutes of Practical Utility passed in 1897 (60 & 61 Vict.), arranged The appearance of a fifth edition of Sir Frederick Pollock's Law of tinuation of “Chitty's Statutes,” with Notes, and a Summary of the
in A'phabetical Order, in continuation of Alphabetical Order in conTorts within eleven years of the first publication of the work is a sufficient indication that its merits are appreciated. In the main the & Mas well (Limited); Stevens & Sons (Limited).
Statuies selected. By J. M. LELY, M.A., Barrister-at-Law. Sweet present edition does not vary from the last. There have been, we believe, no cases involving such a change in the text as the Mogu | Handbook to the Workmen's Compensation Act, 1897, with
approved Schemes of Compensation, &c. By M. ROBERTS-JONES, Barrister-at-Law. Cardiff : Western Mail.
CASES OF THE WEEK.
Court of Appeal.
PENTON v. BARNETT. No, I. 30th Oct. A Treatise on Joint Rights and Liabilities, including those which LANDLORD AND Tenant-Forfeiture-Covenant-Continuous BREACH – are Joint and Several. By WALTER HUSSEY GRIFFITH, Barrister-at
WAIVER-ACTION FOR RENT-CONVEYANCING Act, 1881, s. 14. Law. Butterworth & Co.
This was an appeal from the judgment of Ridley, J., on the trial of an
action of ejectment. The defendant was tenant to the plaintiff of the The Lawyer's Companion and Diary, and London and Provincial premises in question under a lease which contained a general covenant on Law Directory for 1898, with Table of Costs, New Stamp Duties, Time. the part of the defendant to keep the premises in repair, and also a Table of the Courts, Index to Practical Statutes, Public Statutes of further covenant to repair on receiving three months' notice from the 1897, Legal Business of the Months, Oaths in Supreme Court, landlord. The premises having admittedly become out of repair, the Probate, Legacy, and Succession Duties, Legal, Time, Interest, Dis- landlord on the 22nd of September, 1896, gave the tenant a notice, purcount, and other Tables, &c., &c. Edited by E. LAYMAN, B.A., porting to be a notice under section 14 of the Conveyancing Act, 1881, Barrister-at-Law, Fifty-second Annual Issue. Stevens & Sons specifying certain breaches of the covenant to repair, and requiring the (Limited); Shaw & Sons.
tenant within three months to remedy them or make compensation in money for them. The tenant failed to comply with the notice, and on the 14th of January, 1897, the premises still continuing to be out of repair, the plaintiff issued the writ in this action. By the statement of claim the plaintiff claimed : (1) Possession of the premises on forfeiture for breach
of covenant; (2) £6 153., being a quarter's rent due on the 25th of CORRESPONDENCE.
December, 1896 ; and (3) mesne profits from the 25th of December till
judgment. In the defence the defendant pleaded that the plaintiff by JUDGMENT IN DEFAULT OF DEFENCE.
bringing the action to recover rent which accrued due after the alleged [To the Editor of the Solicitors' Journal.]
causes of forfeiture bad waived the alleged forfeiture and was not entitled Sir,- Referring to your article on "The New Rules as to Directions,” the authority of the decision of Wright, J., in Bevan v. Barnett (13 The
to recover possession of the premises. At the trial Ridley, J., acting on is it quite clear that ord. 30, r. 1 (), prevents a plaintiff signing Times Law Reports 310), beld that the plaintiff had waived the forfeiture, judgment under ord. 27, r. 2, without an order? Rule 1 (b) provides and gave judgment for the defendant on the claim for possession. The that no “fresh step” shall be taken other than application (inter plaintiff appealed, and it was argued on his behalf that the breach of alia) to enter judgment in default of defence under ord. 27, r. 2. covenant in this case was a continuing breach, and there was nothing Under this rule no application for judgment was necessary or pos- inconsistent in the plaintiff treating the defendant as his tenant up to the sible, the plaintiff signing judgment as a matter of course as soon as 25th of December and insisting on the breach of covenant which conthe defendant was in default.
tinued after that date as a ground of forfeiture: Hartshorne v. Watson (4 The object of rule 1 (b). was apparently to prevent any "fresh Bing. N. C. 178); Fryett, ex dem Harris v. Jeffreys (1 Esp. 393); Jones v. step.” being taken except judgment, and not to alter the practice of Carter, (15 M. & W: 718), On the part of the defendant it was contended
that the point had been decided in Bevan v. Barnett, which followed the signing the judgment itself.
The point is one of considerable importance where the claim is for case of Dendy v. Nicholl (4 C. B. N. $. 376). When the notice expired on a debt or liquidated demand, and the defendant makes default in his the defendant as a trespasser, and by electiog to treat him as a tenant up
the 22nd of December, the plaintiff had an option whether he would treat defence, for if the construction contended for by you is correct, it will to the 25th of December he waived the forfeiture. add to the expense of obtaining judgment in a class of cases where
THE COURT (A. L. Smith, Rigby, and Collins, LJJ.) allowed the it is inconceivable that the new rule was intended to apply.
appeal. London, Nov. 3.
SUBSCRIBERS. A. L. SMITH, L.J , said it was clearly laid down in Dendy v. Nicholl that [Our correspondents will see from the observations under the head a landlord by bringing an action of ejectment evinced an intention to treat of “Current Topics' that that matter has now been settled. - evinced an intention to treat him as being still his tenant. Here, no
the lessee as a trespasser, and by bringing an action for ren; equally ED, S.J.]
doubt, the plaintiff by claiming in this action rent up to the 25th of December evinced an intention to treat the defendant as having been his
tenant up to that date; but there was nothing inconsistent in his also THE WESTMINSTER ABBEY SERVICE.
treating him as having been a trespasser between that date and the 14th [To the Editor of the Solicitors' Journal.]
of January, for the breach of covenant to repair was a continuing breach Sir,--.You quote in last week's issue a letter from a London attor. the breaches of covenant during that period he had not received any
during that period. The defendant, however, argued that with regard to ney wbich appeared in the Times, asking the pathetic question : notice under the Conveyancing Åct. In his opinion the defendant had "* Åre solicitors deemed so Godless that it is impossible to include received sufficient notice, for the premises were in the same state of disthem in the invitation to attend the service at Westminster Abbey, to repair at the time when the writ was issued as they were when the notice which the judges, Queen's Counsel, and others ware invited ?” was given. He doubted whether the case of Bevan v. Barnett was rightly
I think the writer hardly does himself or his brother attorneys decided; it was not clear whether the breach of covenant in that case was justice. Is it not fair to assume that it was on account of our godly a continuing breach. He therefore thought the appeal must be natures that it was deemed unnecessary to extend the invitation to allowed. us, and that it was with a view to bringing the invited ones within the
RIGBY and COLLINS, L.JJ., concurred.-COUNSEL, R. Wallace, Q.C., and fold that they were asked to attend the service in question ?
J. D. Crawford ; H. D. Greene, Q O., and Poulier. SOLICITORS, Lee 8 London, Nov. 2.
ATTORNEY AND SOLICITOR.
Pembertons ; Finch f. Turner.
[Reported by F. G. Rucker, Barrister-at-Law.] LONDON FREEHOLD AND LEASEHOLD PROPERTY CO. (LIM.) v. BARON SUFFIELD. No. 2. 6th, 7th, 9th, and 10th Aug. ; 30th
Oct. The record fór the transmission by long distance telephone of affidavits in an attachment case wae, says the Albany Law Journal, surpassed on the 30th Deer-Escrow_DelivERY ro Grantor's Solicitor, WHO IS ALSO ONE OF ult. by the sending of an affidavit from Minneapolis to New York city. THE GRANTEES-DELIVERY TO STRANGBR, WHETHER NECESSARY TO MAKE The law firm of Kneeland, Thomson, Stewart & Hoelljes, 320, Broadway,
DEED AN ESCROW-MISAPPROPRIATION OF CONSIDERATION MONEY BY A received a telegraphic inessage from Austin, Hall & Co., of Minneapolis,
PERSON WHO IS AGENT OF BOTH PartieS-MONEY NEVER RECEIVED BY stating that they bad obtained an attachment against the Bank of Minne
GRANTOR-FAILURE OF CONSIDERATION. apolis for 9,000 dols. for money deposited. The message said the bank had This was an appeal from a decision of Kekewich, J., refusing to set suspended, and that it had a balance at the National Bank of Commerce of aside a mortgage deed which the plaintiffs, the mortgagors, alleged to New York city which the firm desired to obtain. The New York attorneys have been delivered to Llewellyn Malcolm Wynne, their solicitor, as an saw the necessity for hasłe, and advised their clients by wire to assign the escrow only. Wynne was also, as a trustee, one of the mortgagees, and claim by telephone to some representative in that city. Arrangements were Kekewich, J., refused to make an order setting aside the deed. The accordingly made, and the telephone affidavits were written out at the New plaintiffs appealed. York end, and an affidavit was made as to the identity of the voice. All THE COURT (LINDLEY, M.R., and Lord Ludlow and Chitty, L.JJ.) disthese papers were attested by a notary, taken into Court, and, after being missed the appeal. approved, placed in the hands of the sheriff for service. This prompt action LINDLEY, M.R., read the judgment of the court as follows: This is an tied up the funds of the Bank of Minneapolis on deposit with the National appeal by the plaintiffs from a decision of Kekewich, J., refusing to set Bank of Commerce. A member of the law firm that transacted the business aside a mortgage executed by them for securing £9,000 to Lord Suffield claims that there can be no question as to the legality of proceedings of this and others, who were the trustees of a settlement called Arthur's settlenature, provided cara is taken to identify the voice as heard over the tele- ment. In order to understand the facts it is necessary to refer to the phone as that of the maker of the affidavit. The Court of Appeals has many characters filled by Mr. Wynne. He was one of the trustees of thrown out one case in which the voice was not identified, but other cases Arthur's settlement, and in that character he was one of the mortgagees. have been endorsed by the higher Courts.
He was also a solicitor carrying on business in partnersbip with big
brother Campbell Wynne under the name of Wynne & Son, and Wynne interest at 57 per cent. might be replaced by one mortgage bearing & Son were the solicitors of the trustees. He was also carrying on the interest at 4 per cent. On the 28th of June, 1893, Wynne & Son wrote business of a banker in partnership with his brother. He was also the to Colonel Lloyd, one of the Arthur trustees, and told him that the money managing director of the plaintiff company, and in May, 1886, Wynne & received by the Arthur trustees had been invested on this mortgage. This Son were appointed managers and bankers of the company at a commis- letter was written in answer to some inquiry made by him. The date of sion. Wynne & Son were also solicitors to the company, and Wynne & the mortgage, the 29th of December, 1893, was, we were told, filled in Son's office was the office of the company, and Wynne & Son's con by the law stationer when it was sent to be stamped. The blanks left for veyancing clerk Tyler was the secretary of the company. This relation of the days of payment have never been filled in. The mortgage Wynne & Son to the plaintiff company is all-important in this case.
As deed appears to
have been kept by Wynne & Son in a bankers and managers, Wynne & Son kept the company's accounts, and box in which they kept miscellaneous deeds likely to it was their duty as managers to pay the company's money received by wanted for temporary purposes or to be stamped. This box was them as managers into their bank. Payment to Wynne & Son for the known as the temporary box. It was distinct from the Arthur trustees' plaintiff company was in point of law payment to the plaintiff company. box and also from the plaintiff company's box. The mortgage deed was Moreover, it would be in accordance with the ordinary course of business found there after Wynne's bankruptcy, which occurred in March, 1895. for a banker who had to pay money for one customer to another to effect The mortgage was not entered in the company's register of mortgages, such payment by book entries- i.e., by debiting one customer and credit nor was it registered in the Middlesex Registry until the 22nd of May, ing another in their respective accounts; and it would not be necessary 1897, the day after Kekewich, J., gave judgment in the present action. that any cash should actually pass from the one customer to the other. It seems that at about the same time, and with a view to such registration, Child & Co. were Wynne & Son's bankers. In May, 1892, Wynne & Son, one of the Arthur trustees executed the mortgage. But this, of course, as the solicitors of Arthur's trustees, received a sum of £9,500 and paid it cannot affect the rights of the parties. Such is the history of the iminto Child's Bank to the credit of their own account. This sum had to be peached deed. The plaintiffs seek to set aside this £9,000 mortgage on re-invested in the pames of the trustees, and it appears from the corres the following grounds-viz., first, on the legal ground that the mortgage pondence that one of the trustees, Mr. Somerset, knew that Wynne & Son never was executed as a deed, but was only an escrow ; secondly, on the had the money in their hands for re-investment. The plaintiff company equitable ground that the mortgagees never gave and that the company had some mortgages created by them amounting to £9,183 or thereabouts, never got the consideration for which the mortgage was given. As and bearing interest at 5 per cent., and one of these mortgages, for regards the invalidity of the mortgage as a deed, it is urged that, £1,600, bad been called in. As early as February, 1893, Wynne had although sealed, the mortgage was handed to Wynne, not as one of the suggested to the directors of the plaintiff company the expediency of mortgagees nor as solicitor to the mortgagees, but as solicitor to the raising money at 41 per cent. in order to pay off these mortgages, and the plaintiff company, to be delivered to the mortgagees or to be kept by him directors agreed to the suggestion. With a view to raising the money as their solicitor only when the £9,000, or at least some of it, reached the necessary for carrying out this scheme, a valuation of the properties mort- plaintiff company or was applied in paying off the other mortgages which gaged was made in February, 1893, by Lang & Co. Wynne appears to the company had arranged to pay off. Kekewich, J., decided this point have ordered this, but the directors knew about it and authorized it, and against the plaintiff company. We take the same view. We are not the company ultimateiy paid for it. Between February and June, 1893, prepared to go so far as to say that, as Wynne was himself one of the a sum of £9,000 was mentioned as the sum to be raised. The mode of mortgagees and a party to the deed, it could not in point of law be an raising it and all the details of the arrangement were left to Wynne. He
escrow in his hands. Counsel for the defendants contended that the mere told the board he had clients who would lend it, and when the deed was fact that Wynne was himself one of the mortgagees was fatal to the deed executed, if not before, he referred to the lenders as the Arthur trustees. being an escrow. They contended that to be an escrow the deed must be In the accounts kept by Wynne & Son there are entries which, if delivered to some person not a party taking under it; in short, to a reliable, shew that on the 1st of June, 1893, Wynne & Son transferred stranger. In support of this contention reliance was placed on Co. Lit., £9,000 from their account with the trustees to the credit of the plaintiff 31, 36; Shep. Touchstone, 65; and Whitton's case (Cro. Eliz. 520). No company. The account to which the £9,000 was carried was headed “The doubt the language used in the authorities referred to, and reproduced in London Freehold and Leasehold Property Company Mortgage Account.” other works on real property and conveyancing, is in favour of this conThis ledger credit of the 1st of June, 1893, is impugned by the plaintiff tention. But the language is very general, and we are not at all satisfied company as a fictitious entry not made at the time but at come later that the law is so rigid as to compel the court to decide that where there date in order to give some colour to the mortgage deed afterwards executed. are several grantees and one of them is also solicitor of the grantor and Worley and Ryder, two of the directors, say they never knew anything of of the other grantees, and the deed is delivered to him, evidence is not this entry, but this is not surprising, as they left all the accounts to admissible to shew the character in which and the terms upon which the deed Wynne & Son, and never troubled themselves about any books except the was so delivered. To exclude such evidence appears to us unreasonable ; minute-books and the company's pass-book with Wynne & Son. The and we do not think we are compelled by authority to exclude it. We £9,000 does not appear in the pass-book; but this is accounted for because hold such evidence to be admissible, and in so doing, we believe we are the £9,000 was not to be drawn upon or used for the general purposes of acting in accordance with modern authorities, beginning with Murray v. the company, but was to be appropriated and applied by Wynne & Son Lord Stair (2 B. and Cr. 82), and ending with Watkins v. Nash (23 W.R. for the special purpose of paying off the existing mortgages on the pro- 647, 20 Eq. 262). Upon the evidence, however, we come to the conclusion perty comprised in the mortgage to the Arthur trustees. [His lordship that the mortgage was a complete deed, and that it was given as such to examined the evidence as to the ledger entry, came to the conclusion that Wynne in order to enable him to carry out the arrangements to which it was not shown to be fictitious or fraudulent, and proceeded :] In addi we have before alluded ; and to carry them out as he thought proper. tion to the mortgage for £9,000, with which we are alone concerned in the There remains the more difficult question whether the deed, being good present case, another mortgage by the company to other persons for at law, can be impeached in equity. The mere fact that no cash passed £5,500 was contemplated, and on the 12th of June, 1893, Wynne & Son, when the deed was executed is not enough to invalidate it. The by letter, informed Worley and Ryder, two of the directors, that they directors knew perfectly well that no cash passed. They were not (Wynne & Son) had arranged for the transfer of mortgages for £14,500. informed how Wynne intended to carry out the arrangement, It is clear that this referred to the arrangements made for the above- but they left him to carry it out as he thought best. It is contended mentioned mortgages for £9,000 and £5,500. At about this time instruc- that he had no authority to receive the £9,000 except in cash, but he had tions were given by Wynne & Son to counsel to prepare the £9,000 mort- the cash from the trustees for investment. Whether the plaintiff company gage. Wynne and Tyler attended to this. The draft was settled by got it from him is another matter. If the credit entry of the 1st of June, counsel on the 15th of June, and Tyler had it back before the 22nd of 1893, is a trustworthy entry made by Wynne & Son, who had the trustees June. On the 19th of June Worley and Ryder were informed by Wynne money to invest and who were the plaintiff company's managers and & Son that a meeting of the board would be held on the 22nd. Á meeting bankers, the entry will represent a real transaction between the plaintiff of the directors of the plaintiff company was accordingly held on the 22nd company on the one side and the Arthur trustees on the other. For of June, 1893. An agenda paper for the meeting was prepared by Tyler, Wyöne & Son, as the managers and bankers of the company, had implied and this paper stated that part of the business would be to seal the £9,000 authority from the company to place to their credit any money placed in and £5,500 mortgages. The directors present on the 22nd were Wynne, Wynne & Son's hands for the company or directed to be paid to the Worley, and Ryder. Tyler, the secretary, was also present. The mort. company; and Wynne & Son had ample authority from the Arthur trusgage for £9,000, engrossed for execution, but with date and days for pay- tees to deal with their money in Wynne & Son's hands by debiting them ment left in blank, was produced and discussed, and a statement of the with it and carrying the amount to the credit of any one who banked with properties the mortgages on which were to be paid off was also produced. Wynne & Son and who gave a proper mortgage for it. We have come to After explanations by Wynne, it was "resolved that the seal be affixed the conclusion that the credit entry was made to represent a real transto the mortgage for £9,000 on Victoria Warehouses and Bury-street, and action and that if it had been known and questioned at the time no one that for £5,500 on all the properties subject to prior mortgages.?
Both would ever have complained of it as in any way irregular or improper. these mortgages were accordingly sealed with the company's seal. Both But when Wynne & Son became bankrupt and it was then discovered that Worley and Ryder signed the £9,000 mortgage as directors. Tyler also they had not carried out the arrangements which were contemplated, the signed it as secretary. The blanks were not filled up. The document plaintiff company very naturally quarrelled with every step in the transthus sealed was given to or left with Wynne ; but in what capacity is by action. But the case does not by any means depend solely on the foreno means clear. Worley, Ryder, and Tyler have all given evidence as to going considerations. As between the plaintiff company on the one side what took place when the £9,000 mortgage was sealed, and it is con
and the Arthur trustees on the other the plaintiff company have, in our tended by counsel for the plaintiffs that the mortgage was merely an opinion, no equitable right to set aside the mortgage. The plaintiff escrow, and never became a perfected deed. We are unable to come to company have, in our opinion, enabled their managers and bankers to this conclusion. It is in our opinion clear that the deed was sealed and make representations to the mortgagees that their money was invested on delivered by the company, acting through its directors and secretary, as a the security of property belonging to the plaintiff company. Such repredeed-i e., as a perfect instrument-and that it was so executed in order sentation has been made ; the mortgagees had every reason for believing that it might be used as an operative deed for the purpose of carrying it to be true, they did believe it to be true, and they acted on that belief by out the contemplated arrangement by which several mortgages bearing ceasing to inquire after their money. They were not bound to make any
further inquiry. Had they done so it is obvious that the deed would have been the Jubilee was over, and all profit or loss gained or incurred in carrying produced to them. These circumstances turn the scale against the plain- out the primary objects of the syndicate was at an end. The directors tiff company and distinguish this case from Wall v. Cockerell (9 Jur. N s. were competent to wind up the company, and the court would not 447), which was so much relied upon by the counsel for the appellants. interfere if the company and its directors and officers would do so; but in In Wall v. Cockerell there was no authority to borrow on the security of the contemplating carrying on the business when the main object of the impeached deed; there was no relation of banker and manager on the one company had ceased to exist the directors were acting ultra vires, and the side and customer on the other ; there was no money of the mortgagees in later object-clauses of the memorandum of association should not be read the hands of the agent of the mortgagor ; there was no credit in account. as defining a succession of objects different from the main object, but Moreover, the mortgagor was induced to execute the mortgage by mis as referring to matters incidental to it, and that therefore the court representation. Lord Chelmsford distinctly said so, and Lord Westbury should make a winding-up order.-Counsel, Alexander, Q.C., and Hon. merely said it was not necessary to put the case so high. In Coupe v. M. Macnaghten ; Bramwell Davis, Q.C., and W. E. Vernon ; Grazebrook ; Collyer (62 L. T. N. S. 927) the impeached deed was held to be only an Stewart Smith; W. de B. Herbert and J. Ashton Cross. SOLICITORS, W. H. escrow; there was there no relation of banker and customer; and the Smith & Son ; John Vernon, Son, f Stephen ; Cresswell & Co.; Julian Ellis ; mortgagees never placed money in the hands of the mortgagor's solicitor French fo Co.; E. R. Donisthorpe. for investment. On these grounds we are of opinion that the decision
[Reported by C. W. MEAD, Barrister-at-Law.] appealed from was correct. We have purposely abstained from saying anythiag about notice to either party through Wynne of what he did or knew. The case turns on the facts and not on any doctrine of notice. The appeal must be dismissed with costs.
High Court-Queen's Bench Division. Lord Ludlow having agreed to this judgment before his retirement, it can be passed and entered as the judgment of the court which heard the
GRAY v. SYLVESTER. Div. Court. 30th Oct. case, and be dated the 10th of August.-COUNsel, Bramwell Davis, Q.C., LOCAL GOVERNMENT-SANITARY AUTHORITY-BYE-LAW-REASONABLBNESS. and H. C. Hawkins ; Renshaw, QC., P. 0. Laurence, Q.C., and Daniel Jones ; F. Whinney. SOLICITORS, Davidson & Morriss ; Lawrence, Graham, ton. An information was preferred by the appellant against the respon
This was a special case stated by justices for the county of Southampof Co.; Hasties.
dent at Ryde Petty Sessions charging him with unlawfully selling a (Reported by R. C. MACKENZIE, Barrister-at-Law.!
weekly newspaper on the Sandown esplanade contrary to the bye-laws of the sanitary authority, the Sandown Urban District Oouncil. It was proved or admitted that the sea beach and foreshore at Sandown
were vested in the Sandown Urban District Council for the purposes of High Court-Chancery Division.
public walks or pleasure grounds by virtue of the provisional order of the Re THE LINOTYPE CO.'S TRADE-MARK. Kekewich, J. 29th Oct.
Local Government Board, duly confirmed by the Local Government
Board's Provisional Orders Confirmation (Caistor Union, &c.) Act, 1877. TRADE-MARK—"TYPOGRAPH” — REFERENCE TO THE CHARACTER OR QUALITY By section 7 of the same Act the Saudown Local Board were authorized of the Goods—Patents, Designs, AND Trade-Marks Act, 1888 (51 & 52 (subject to the provisions of the Public Health Act, 1875) to make byeVict. c. 50), s. 10.
laws and regulations with reference to the sea beach and foreshore along This was an appeal from the decision of the Comptroller-General of the whole frontage of their district (no reference being made to the Patents, Designs, and Trade-Marks refusing to register the trade-mark esplanade, which was constructed on part of the sea beach or foreshore “ Typograph" in connection with unwrought and partly wrought metal subsequently to the passing of the act). In pursuance of that section manufactured by the appellant company, on the ground that the word and of section 164 of the Public Health Act, 1875, the Sundown Local “Typograph"
a word having no reference to the character or Board, then being the sanitary authority for the urban sanitary district of quality of the goods” within clause (e) of section 10, sub-section 1, of the Sandown, in 1892 duly made certain bye-laws, of which the one in Patents, Designs, and Trade-Marks Act, 1888. The appellant company question was as follows: person shall not on any part of the sea desired to register the word "Typograph” as a trade mark in connection beach, foreshore, or esplanades sell or offer or expose for sale any com. with the wrought and unwrought metal, such as iron, steel, iron pig,
modity or article, or let to hire or offer or expose for hire any chair, seat, iron rails, lead roll, lead sheet, iron boilers, &c., manufactured and used or other thing except by the direction of the sanitary authority, or in by them for the purposes of their business of composing-machine makers such part or parts of the sea beach, foreshore, or esplanades (if any) as the and printers according to the linotype process.
sanitary authority may by notice affixed or set up thereon from time to KEKBWICH, J., said that, regarding the word "Typograph” from the time appoint for the purpose, and every person who shall offend against point of view from which, in the circumstances, the ordinary British such bye-law shall be liable to a penalty of 40s.” The justices were of subject would regard it in connection with the goods in question, it was opinion, on the authority of Munro v. Watson (51 J. P. 660) and Johnson v. impossible that any ordinary man should not conclude that the word Mayor of Croydon (16 Q. B. D. 708), that the bye-law was illegal, incon: was connected with the character or quality of the goods, and his lordship sistent, unreasonable, and repugnant to the law of England, in that it therefore dismissed the appeal.-COUNSEL, Moulton, Q.O., and A. J. Walter; enabled the sanitary authority of Sandown to legalize a nuisance, or Sir R. E. Webster, A.G., and Ingle Joyce. SOLICITOR3, Hays, Schmettau, s prohibit a lawful act which was not a nuisance. The justices, therefore, Ancrum ; Solicitor to the Board of Trade.
dismissed the information. [Reported by R. J. A. MORRISON, Barrister-at-Law.]
The Court (the MASTER OF THE Rolls and Chitty, L.J., sitting as a Divisional Court of the Queen's Bench Division) allowed the appeal.
The MASTER OF THE Rolls said that in coming to a decision on this case
it was necessary to look at the statutory authority under which the byeWinding-up Cases. law was made and at the language of the bye-law.
Under the local Act
in question the local authority had power to acquire the foreshore and lay Re AMALGAMATED SYNDICATE (LIM.) Vaughan Williams, J. out thereon an esplanade, and to make bye-laws and regulations with 27th and 28th Oct.
reference to the sea beach and foreshore along the whole frontage of the COMPANY-WINDING-UP-MEMORANDUM OF ASSOCIATION -SUBSTRATUM Gone district.. Under that section the local authority had made the bye-law
-ANCILLARY CLAUSES—"JUST AND EQUITABLE” —COMPANIES ACT, 1862 in question. The justices had come to the conclusion that the bye-law (25 & 26 VICT. C. 89), s. 79, st B-SECTION 5.
was invalid as being more extensive than the circumstances of the case
required. His lordship was not prepared to go that length. In his This syndicate was incorporated to take over the undertakings of three opinion the bye-law was not unreasonable or ultra vires. The cases relied other companies formed for the purpose of acquiring sites and erecting on by the justices were decided under the Municipal Corporations Act, seats for viewing the Diamond Jubilee Procession. The memorandum 1882, the language of which was very different, and the bye-laws made of association also contained clauses giving as the other objects of the under that Act were addressed to a different subject-matter from the company "(a) To carry on all kinds of promotion business, and in par- present. It was one thing to make a bye-law for the good government ticular to form, constitute, float, lend money to, assist, and control any of a town and another for the regulation of an esplanade on the sea companies, associations, or undertakings whatsoever, including any shore. For the latter purpose it was not unreasonable for the local companies, associations, or undertakings for the purpose of acquiring all authority to say that nothing should be sold on the esplanade without or any of the property and liabilities of this company; (e) to act as
their direction. The appeal would therefore be allowed. house agents, surveyors, and builders ; (f) to acquire, sell, and deal in
CHITTY, L.J., concurred. Appeal allowed.-COUNSEL, Macmorran, Q.O., rooms, premises, stands, seats, and places of observation in connection C. A. Russell, Q.C, and Dunlop Hill. Solicitors, Wood, Bigg, & Nash, for with any procession, spectacle, entertainment, sports, exhibition, and Wooldridge f: Wilton, Sandown; Kopwood, Stroughill, f. Hopwood. demonstration or public gathering of any description, and to supply refreshments or lodgings and accommodation for any persons attending,
[Reported by F. 0. ROBINSON, Barrister-at-Law.] witnessing, or interested in the same.” Tbe enterprize had resulted in a
BAKER v. WILLIAMS. Div. Court. 1st Nov. loss over the Diamond Jubilee. The directors now proposed to carry on other businesses contained in the other clauses of their memorandum of DISEASES OF ANIMALS-REGULATION CowshedS-VENTILATION-AIR association. A shareholder who objected presented a petition for the
Space-CONTAGIOUS DISEASES (ANIMALS) Act, 1878 (41 & 42 Vict. c. 74), compulsory winding-up of the syndicate on the ground that the substratum 8. 34-DAIRIES, COWSHEDS, AND MILKSHOPS Order, 1885. of the company was gone as the Diamond Jubilee was over, and that it Special case stated by justices for the bɔrough of Southport. The was just and equitable” that the court should order the syndicate to be appellant, a dairyman and cowkeeper, had been convicted for contrawound up.
veniog a regulation, which purported to be made under the Contagious VAUGHAN WILLIAMS, J., held that the petition could be supported under Diseases (Animals) Act, 1878, and the Dairies, Cowsheds, and Milkshops section 79, sub-section 5, of the Companies Act, 1862 ; that the syndi. Order of 1885, and was dated the 8th of April, 1890. By section 34 of the cate was formed for the purpose of taking over the undertakings and Contagious Diseases (Animals) Act, 1878, the Privy Council was emassets of the three companies with reference to the Diamond Jubilee ; that powered to make orders (inter alia) " for the inspection of cattle in dairies
and for prescribing and regulating the lighting, ventilation, cleansing, fore given in time. Re Paul (24 Q. B. D. 247) and Black v. Clay (1894, drainage, and water supply of dairies and cowsheds,” and “for A. 0. 368) were cited. authorizing a local authority to make regulations for the purposes afore The Court (WRIGHT and KENNEDY, JJ.) dismissed the appeal. said or any of them”; and by section 58 an order of the Privy Council Wright, J.-Having regard to the Scotch case (Black v. Clay), I think under the Act is to have effect as if it had been enacted by the Act. The there is no real doubt in this case. The substance of the matter is this : Privy Council made an order under the Act intituled the Dairies, Cow. Section 1 of the Act says that a tenant shall be entitled “on quitting his sheds, and Milkshops Order, 1885, wbich provided by article 7 'that it holding on the determination of a tenancy" to obtain compensation for should not be lawful for a cowkeeper to begin to occupy a dairy or cow certain improvements By section 54 the Act is not to apply to a holding shed unless he first made provision to the reasonable satisfaction of the that is not either wholly agricultural or wholly pastoral or in part agricul. local authority " for the lighting and ventilation, including air space, and tural and as to the residue pastoral; and section 61 says that". 'holding the cleansing," &c., of the same. By article 8 it was provided that it means any parcel of land held by a tenant.” The Act, therefore, conshould not be lawful for a cowkeeper to occupy any cowshed, whether old templates compensation being given in respect of an agricultural or or new, as long as the lighting and the ventilation, including air space, pastoral holding on the determination of the tenancy of such a holding. and the cleansing,” &c., were not such as were proper. By article 13 (5) On the 26th of February, when this notice was given, there was no power was given to a local authority to make rules for regulating the tenancy of an agricultural holding; the time within which notice of a lighting, ventilation, cleansing, drainage, and water supply of dairies and claim under the Act could be given expired two months before the 2nd of cowsheds.” Under this order the Corporation of Southport made a regu- February. This view is strongly confirmed by the case of Black v. Clay. ation (under which the appellant was convicted) providing that in cow And Re Paul, as I read it, was decided on the ground that the tenant had sheds in the borough there must be at least 800 cubic feet of free air retained 200 acres of agricultural land, and that, therefore, bis tenancy space for each animal. It was contended-(1) that the regulation in still subsisted. The appeal must be dismissed. question was one that could not be made by the mayor, aldermen, and KENNEDY, J., agreed. Appeal dismissed.-- COUNSEL, Beverley ; Clavell burgesses as the local authority under the Order of 1885; (2) that the Salter. SOLICITORS, Turner & Co., for Percy Naylor, Keighley ; Bower, word“ ventilation" in the 13th article of such Order did not authorize Cotton, fBower, for Longbottom f Sons, Halifax. any regulation with regard to the quantity of air space; (3) that the
[Reported by T. R. C. Dill, Barrister-at-Law.] provisions of section 34 of the Contagious Diseases (Animals) Act, 1878, did not authorize the making of any order of the Privy Council regulating
LEWIS v. POOLE. Div. Court. 2nd Nov. air space or free air space; and that, therefore, in so far, if at all, as the Dairies, Cowsheds, and Milkshops Order of 1885 imposed any restrictions LOCAL GOVERNMENT-Parish DOCUMENTS — Power of JUSTICES TO ORDER
DOCUMENTS RELATING TO TITHE APPORTIONMENT AND MAPS TO BE PLACED as to air space, or purported to authorize the making of any regulations by the local authority as to air space, such order was invalid. Institute
IN CUSTODY OF Parish COUNCIL-TITHE COMMUTATION Act, 1860 (23 & 24 of Patent Agents v. Lockwood (1894, A. C. 34), Reed v. Harvey (5 Q. B. D.
VICT. C. 93), s. 28-LOCAL GOVERNMENT Act, 1894 (56 & 57 Vict. c. 73),
s. 17. 184), and Éx parte Foreman (18 Q. B. D. 393) were cited. The Court (WRIght and KENNEDY, JJ.) dismissed the appeal.
Case stated by justices of Southampton. An application was made by
Mr. Lewis under section 28 of the Tithe Commutation Act that the WRIGHT, J., after referring to the Act and the Order of 1885, said the justices of the Droxford Petty Sessional Division should make an order question was, Did those words give the power to the local authority to
to remove the tithe apportionment and map of the parish of West Meon make regulations for air space as well as ventilation? It was rather strange that air space should be included in articles 7 and 8 and not in from the custody of the respondent, the Rev. Canon Poole, rector of the article 13. The order under the Act was to have the effect of an Act of Parish Council of West Meon. The justices refused to make the order on
parish, and direct that the same be deposited in the custody of the Parliament. What was the effect of that? The case of Institute of Patent the ground that they had no power to do so under the section. The Agents v Lockwood showed that, in such a case, the Order and statute appellant contended that the documents ought to be in the custody of should be read together. Following that principle, there was no incon. the parish council, and that the respondent was a “person other than the sistency in interpreting article 13 of the Privy Council Order as giving person legally entitled to the possession " of the said documents within power to the local authority to make regulations in respect of " ventilation the meaning of section 28 of the Tithe Commutation Act, 1860. The and air space.”
respondent denied that he was not a proper person to retain the custody KENNEDY, J., concurred. This was a case of a conviction for breach of of the documents, and contended that the documents did not come the regulations as to cowsheds. The regulation was said to be ultra vires. within section 17, sub-section (8), of the Local Government Act, 1894. It seemed to the learned judge that there was nothing wrong in a Privy He submitted that the resolution and order of the parish council could Council Order under the Act dealing with air space. In fact, they had not be enforced under section 28 of 23 & 24 Vict. c. 93. provided for air space as well as ventilation for all dairies and cowsheds,
THE COURT (WRIGHT and KENNEDY, JJ.) decided that the magistrates both old and new, though it was difficult to see why, in articles 7 and 8 had power to make the order sought for. ventilation and air space were included and not in article 13. The decision of the magistrates was right Appeal dismissed.-COUNSEL, of the parish council, and (6) what was the procedure that ought to be
WRIGHT, J., said the court had two questions to determine-(a) the power Moulton, Q.0, Pickford, Q.C., and Horridge ; Macmorran, Q.C., and G. H. followed? The Local Government Act, 1894, s. 17, provided that docuPollard. Solicitors, Pritchard, Englefield, g Co., for Arthur S. Mather, ments directed by law to be kept with public books and papers should Liverpool ; J. Davies Williams, Southport.
either remain in their existing custody or be deposited in such custody as [Reported by T. R. C. Dill, Barrister-at-Law.]
the parish council might direct. By section 28 of 23 & 24 Vict. c. 93 the
justices bad jurisdiction to order documents of this kind to be deposited MORLEY v. CARTER. Div. Court. 29th Oct.
in such custody as they thought fit. In his opinion the Local GovernLANDLORD AND TENANT AGRICULTURAL HOLDING-NOTICE OF CLAIM
ment Act of 1894 had changed or modified the jurisdiction which justices DETERMINATION TENANCY-LAND AND BUILDINGS-AGRICULTURAL
formerly beld, and they ought to hesitate before overriding the resoluHOLDINGS (ENGLAND) ACT, 1883 (46 & 47 Vict. c. 61), s. 7.
tion of the parish council, upheld as it was in this case by an order of the
county council. The right of the rector to have the custody of the tithe Appeal from the refusal by the Registrar of the Halifax County Court map and the like was therefore changed, and it was the person desigto appoint a referee to settle a difference between the landlord and tenant nated by the parish council who was now the person legally entitled to as to the compensation payable to the latter under the Agricultural the custody thereof. The case must go back to the justices with an Holdings Act, 1883. Morley was tenant from year to year, and Carter intimation that they had power to make the order applied for. was landlord of a farm and buildings under a lease which provided that KENNEDY, J., concurred.-COUNSEL, Lord Coleridge, Q.O., and Cancellor, on notice to quit being given the land included in the holding should be for Mr. Lewis; Macmorran, Q.O., and Gollan, for Mr. Poole. SOLICITORS, given up on the 2nd of February and the buildings on the 1st of May in Attree, Johnson, of Ward, for Shield f Mackarness, Alresford and Petersany year. The tenant, in June, 1896, gave a notice (which was admitted field ; E. W. Peterson. to be in order) that he would quit the holding on the 2nd of February,
[Reported by ERSKINE REID, Barrister-at-Law.] 1897, and on that day he quitted the land ; he remained in possession of the buildings until the 1st of May, 1897, when he gave them up. On the REG. v. MEAD, ESQ., METROPOLITAN POLICE MAGISTRATE. Ec parte 26th of February, 1897, he gave notice to the landlord that he intended to
THE LONDON COUNTY COUNCIL. Div, Court. 2nd Nov. claim compensation under the Agricultural Holdings Act, 1883. On the SUMMARY PROCEEDINGS—DANGEROUS STRUCTURE—SUMMONS GRANTED AGAINST 29th of April he gave notice to the landlord that he had appointed a person to act as referee to assess the compensation, and required the land
“The OWNER,” WHOSE NAME AND ADDRESS WAS UNKNOWN-SUMMONS lord to appoint a referee on his behalf. The landlord did not appoint a
AFFIXED TO THE PREMISES-WHAT EVIDENCE IS REQUIRED BEFORE Magisreferee, and on the 14th of June the tenant applied, pursuant to a sum
TRATE CAN HOLD SUCH SERVICE TO BE “A GooD SERVICE" or SUMMONS -mons, to the county court to appoint a referee. The application was by
SUMMARY JURISDICTION ACT (11 & 12 VICT. c. 43, s. 1)-LONDON BUILDING consent heard by the registrar. Section 7 of the Agricultural Holdings
Act, 1894 (57 & 58 Vict. c. CCXIII.), ss. 107, 188, SUB-SECTION (1.). Act provides that notice of an intention to claim compensation must be In this case a rule nisi had been obtained for a mandamus calling on Mr. given by the tenant to the landlord “two months at least before the Mead to shew cause why he should not hear and determine a summons determination of the tenancy:" Section 9 (6) requires the county court to under the London Building Act, 1894, in respect of a dangerous structure. appoint a referee if for fourteen days after notice by one party to the On the 22nd of September, 1897, the London County Council applied for other to appoint a referee the other party fails to do so. The registrar a summons under section 107 of that Act returnable before Mr. Mead on refused to make the order on the ground that the tenancy was determined the 1st of October. It was addressed " To the Owner" of the premises on the 2nd of February, 1897, and that the notice of claim not having merely. The owner was called upon to appear but made no response, been given two months prior to that date the provisions of section 9 as to and the complainant proposed to proceed in his absence on proof that a the appointment of a referee did not apply. The tenant appealed, and copy of the sunimons had been affixed to the premises, and that he had contended that the tenancy was not determined until the let of May, failed on inquiry to ascertain to whom the premises belonged. He subwhen the buildings were given up, and that the notice of claim was there- mitted that the service was a good service under section 188 (*) of the Act.