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Tm: LAW RELATING ro Hronwavs, HIGHWAY AUTHORITIES,‘
This is a very complete treatise on the law of highways. The first ' part deals with the common law relating to the subject, the second ‘ contains the statutes carefully annotated and arranged in appropriate groups. Little change has taken place in the law relating to the creation and user and liability to repair highways since the former edition of this work was published in 1883; but the authorities by whom that law is administered have been materially affected by modern legislation. Probably the most important change is the transfer to rural district councils of the powers and duties of the highway authorities in parishes and highway districts which was effected by the Local Government Act, 1894; but this transfer is still postponed in some counties and where it is in force the powers of the new authorities depend upon those of their predecessors. Mr. Glen has therefore exercised a wise discretion in including in his work those parts of the Highway Acts which relate to the constitution, powers, and duties of parish surveyors and highway boards. The special legislation affecting the metropolis and some other localities does not come within the purview of the book, but with these exceptions it forms a very thorough and, so far as we can judge, an accurate text-book on the law of highways. In a work of this magnitude it is indispensable that the practitioner should be given every facility for readily finding the passage dealing with the particular object of his quest; in this respect Mr. Glen's book is most satisfactory, the index, the tables of contents, statutes, and cases, and the numerous cross-references are excellently done. The decisions are quite up to date, and their effect is accurately given.
The title of this work is a little misleading. The “ Law of District l Councils” would of course include the Public Health Acts, and all the other Acts which district councils have to administer. Mr. Lithiby’s book does not travel over so wide a field, it is, in fact, an edition of thc Local Government Act, 1894, and some of the Acts referred to in amending that Act, with an introduction and notes. The author , has made a somewhat capricious selection, several enactments which _ are incorporated with the ocal Government Act, 1894, find no place in ' his book, while other Acts which have only a remote connection with district and parish councils are set out in full. For instance, the parts of the Municipal Corporations Act, 1882, and the other Acts which affect all elections under the Act of 1894, and are incorporated by section 48 of , that Act, are excluded from Mr. Lithiby's appendix, but the Agricultural ‘ Holdings Act, which merely affects the assessment of compensation where a compulsoryihiring of allotment land has determined, is set out almost in crienso. he Acts, other than the Local Government Act, 1894, and also the orders and circulars, are, for the most part, set out in an appendix in alphabetical order of their short titles ; but in some cases this arrangement has been departed from, and we find lengthy sections, and even whole Acts and orders of the Local Government Board, put in the form of a note to a section of the principal Act. These defects in i the selection and arrangement of the subsidinry'AcI.s mar an otherwise l useful book. We are glad to find the “adoptive Acts” included in the & appendix, and also the more important of the orders and circulars issued by the different. Government departments under the Act of 1894. The Lecsl Government (Joint Committee) Act, 1897 (passed 6th August), is absent, but the other amending Acts are included either in the notes or 5 the appendix. The index is fairly complete; the printing and paper! leave much to be desired.
Tun Law or TORTSI A TREATISE on rnn PRINCIPLES or OBLIGA-
Torts within eleven years of the first publication of the work is a 1
sufficient indication that its merits are appreciated. In the main the I
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
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 author's disapproval, and it is noticed that it was decided “ by a tribunal of whose acting members not one had any working acquaintance with courts of equity.” The short statement of the Mogul case
gives very neatly the point which was actually decided. The cognate case of Allen v. Flood is still undecided by the House of Lords, and will furnish material for the next edition. The only important change in the present edition is in the first chapter, where t e first few pages have been re-written, and the leading ideas in the law of torts stated afresh. N 0 ingenuity will make it possible to bring all torts under a common head. They represent a bundle of civil injuries which have, by the chance of circumstances, to be classed together, and which in the old law were better known by their corresponding remedies. But it is pretty, as Pepys would say, to see how the law of torts is made by Sir Frederick Pollock to fio w from Ulpian’s rule : honeste vivere, alterum non Iaedere, suum cuique tribuere.
Tna LAW or Mums, Qoannms, AND MINERALS. By ROBERT
Use of the former edition of this work in ractice has shewn that it was comprehensive, careful, and accurate, but perhaps a little too assiduous here and there in registering the dicta of learned judges, and rather lacking in arrangement and in proportion in the consideration given to the various subjects. We are glad to observe a marked change in these respects in the present edition. It is altogether more practical and convenient. Thus the chapter on “Leases ” is muchbetter arranged, and more useful in the information given, than the corresponding chapter in the last edition. The chapter on Support, which has been practically re-written, constitutes a clear and well-arranged statement of the law; and we thinlr that the author deserves no little credit for his success in dealing with this diflicult branch of law. Throughout the book the arrangement of matter has been improved, and we find evidence of excellent care in the incorporation and statement of recent decisions and statutes. We think that the book as it now stands is likely to take its place as a complete and standard treatise on mines.
A Treatise on the Law of Mortgages, Pledges, and Hypothecations (founded on Coote’s Law of Mortgages). By LEOPOLD Gnonon Gonnoiv ROBBINS, Barrister-at-Law, assisted by FREDERICK Tni"-:iv'rHAM MAW, Barrister-at-Law. In two volumes. Stevens 8: Sons (Limited). .
A Selection of the Leading Cases in the Criminal Law (founded on Shir1ey’s Leading Cases). With Notes. By HENRY WARBURTON, Barrister-at-Law. Second Edition. Stevens & Sons (Limited).
The Merchant Shipping Acts, 1894-1897. With Notes, Appendices, and Index. By JAMES DUNDAS WHITE, M.A., LL.M., Barrister-ab Law. Second Edition. Eyre & Spottiswoode.
An Outline of French Law as affecting British Subjects. By J. T. B. SEWELL, M.A., LL.D., Solicitor. Stevens & Sons (Limited).
Wuterlow Bros. & Layton’s Legal Diary and Almanack for 1898, containing a List of Stamp Duties from 180! to the present time, with Regulations as to Stamping and Allowance for Spoilt Stamps, a Diary for Every Day in the Year, Suggestions on Registering and Filing Deeds and Papers at Public Oflices, Table of Succession to Real and Personal Property, Papers on the Preparation of Legacy and Succession Accounts, and Notes as to Preliminary, Intermediate, and Final Examination of Articled Clerks; a List of Law Reports, with their Abbreviations and Dates ; an Index to the Public General Statutes from time of Henry III., a Digest of the Public General Acts of Last Session, List of London and Provincial Barristers and London and Country Solicitors, Irish and Scotch Solicitors, with Appointments, Agents, &c. Waterlow Bros. & Layton (Limited).
Paterson's Practical Statutes. The Practical Statutes of the Session 1897 (60 & 61 Vict.), with Introductions, Notes, Tables of Statutes Repealed and Subjects Altered, Lists of Local and Personal and Private Acts, and a copious Index, Edited by JAMES SUTHERLAND COTTON, Barrister-at-Law. Horace Cox.
Statutes of Practical Utility passed in 1897 (60 & 61 Vict.), arranged in Aphabetical Order, in continuation of Alphabetical Order in continuation of " Chitty’s Statutes,” with Notes, and a Summary of the Statuies selected. By J. M. LELY, M.A., Barrister-at-Law. Sweet 8: M8} well (Limited) ; Stevens & Sons (Limited).
Handbook to the Workmen’s Compensation Act, 1897, with
approved Schemes of Compensation, &c. By M. Roanars-Jonas, Barrister-at-Law. Cardiff: Western Mail.
A Concise Treatise on the Law of Arbitrations and Awards‘, with an Appendix of Precedents and Statutes. By J osnrn Howaan Rsmnuv, Barrister-at-Law. Third Edition. Butterworth & Co.
A Treatise on Joint Rights and Liabilities, including those which are Joint and Several. By WALTER Hnssav Garrrrrn, Barrister-atLaw. Butterworth dc Co.
The Lawyer’s Companion and Diary, and London and Provincial Law Directory for 1898, with Table of Costs, New Stamp Duties, TimeTable of the Courts, Index to Practical Statutes, Public Statutes of 1897, Legal Business of the Months, Oaths in Supreme Court, Probate, Legacy, and Succession Duties, Le al, Time, Interest, Discount, and other Tables, &c., &c. Edited by E. LAYMAN, B.A., Barrister-at-Law. Fifty-second Annual Is-sue. Stevens & Sons (Limited); Shaw & Sons.
CORRESPONDENCE. JUDGMENT IN DEFAULT OF DEFENCE. [To the Editor of the Solicitors’ J0urnal.]
Sir,——Referring to your article on “ The New Rules asto Directions," is it quite clear that ord. 30, r. 1 (I1), prevents a plaintiff signing judgment under ord. 27, r. 2, without an order? Rule l (I2) provides that no " fresh step ” shall be taken other than application (inter alia) to enter judgment in default of defence under ord. 27, r. 2. Under this rule no application for judgment was necessary or possible, the plaintifi‘ signing judgment as a matter of course as soon as the defendant was in default.
The object of rule 1 (b) was apparently to prevent any “ fresh step ” being taken except judgment, and not to alter the practice of signing the judgment itself.
The point is one of considerable importance where the claim is for a debt or liquidated demand, and the defendant makes default in his defence, for if the construction contended for by you is correct, it will add to the expense of obtaining judgment in a class of cases where it is inconceivable that the new rule was intended to apply.
London, Nov. 3. Srznscarnnas.
[Our correspondents will see from the observations under the head of “Current Topics” that that matter has now been settled.En. 5../.]
TI-lE_ VVESTMINSTER ABBEY SERVICE. [To the Editor of the Solicitors’ Journal.]
Sir,»-You quote in last week’s issue a letter from a London attorney which appeared in the Times, asking the pathetic question : “ Are solicitors deemed so Godless that it is impossible to include them in the invitation to attend the service at Westminster Abbey, to which the judges, Queen’s Counsel, and others were invited? ”
I think the writer hardly does himself or his brother attorneys justice. Is it not fair to assume that it was on account of our godly natures that it was deemed unnecessary to extend the invitation to us, and that it was with a view to bringing the invited ones within the fold that they were asked to attend the service in question ?
London, Nov. 2. ATTORNEY AND SOLICITOR.
The record for the transmission by long distance telephone of affidavits in an attachment case Was, says the Albany Law Journal, surpassed on the 30th ult. by the sending of an aflridavit from Minneapolis to New York city. The law firm of Kneeland, Thomson, Stewart 8: Hoelljes, 320, Broadway, received a telegraphic message from Austin, Hall dz 00., of Minneapolis, stating that they had obtained an attachment against the Bank of Minneapolis for 0,000 dols. for money deposited. The _message said the bank had suspended, and that it had a balance at the National Bank of Commerce of New York city which the firm desired to obtain. The New York attorneys saw the necessity for haste, and advised their clients by wire to assign tho claim by telephone to some representative in that city. Arrangements were accordin ly made, and the telephone aflidavils wore written out at the New York end, and an affidavit was made as to the identity of the voicc. All these papers were attested by a notary, taken into Court, nnd, after being approved, placed in the hands of the sheriff for service. This prompt action tied up the funds of the Bank of Minneapolis on deposit with the 'ational Bank of Commerce. A member of the law firm that transacted the business claims that there can be no question as to the legality of proceedings of this nature, provided care is taken to identify the voice as heard over the telephone as that of the maker of the aflidavit. The Court of Appeals has thrown out one case in which the voice was not identified, but other cases have been endorsed by the higher Courts.
CASES OF THE WEEK.
Court of Appeal. ranron v. saansrr. No. r. 30th Oct.
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 premises in question under a lease which contained a general covenant on the part of the defendant to keep the premises in repair, and also a further covenant to repair on receiving three mouths’ notice from the landlord. The premises having admittedly become out of repair, the landlord on the 22nd of September, 1896, gave the tenant a notice, purporting to be a notice under section 14 of the Conveyancing Act, 1881, specifying certain breaches of the covenant to repair, and requiring the 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 tho statement of claim the plaintifi claimed : (l) Possession of the premises on forfeiture for breach of covenant; (2) £6 15s., being a quarter’s rent due on the 25th of December, 1896; and (3) mesne profits from the 25th of December till judgment. In the defence the defendant pleaded that the plaintiff by bringing the action to recover rent which accrued due after the alleged causes of forfeiture had waived the alleged forfeiture and was not entitled to recover possession of the premises. At the trial Ridley, J ., acting on the authority of the decision of \Vright, J ., in Bevan v. Barnett (13 Tho Times Law Reports 310), held that the plaintiff had waived the forfeiture, and gave judgment for the defendant on the claim for possession. The plaintiff appealed, and it was argued on his behalf that the breach of covenant in this case wasa continuing breach, and there was nothing inconsistent in the plaintiff treating thc defendant as his tenant up to the 25th of December and insisting on the breach of covenant which continued after that date as a ground of forfeiture : Iiartshorne v. Wiztsan (4 Bing. N. C. 178) ; Fryatt, ea: /Imn Harris v. Jrfreys (1 Esp. 393); Jones v. Garter (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 case of Dandy v. Nichol! (4 C. B. N. S. 376). When the notice expired on the 22nd of December, the plaintiff had an option whether he would treat the defendant as a trespasser, and by electing to treat him as a tenant up to the 25th of December he waived the forfeiture.
THE Counr (A. L. SMITH, ltronv, and Coauss, L JJ.) allowed the appeal.
A. L. Sm-rn, L.J , said it was clearly laid down in .DL’II(I_l/ v. Niclioll that a landlord by bringing an action of ej ectmsnt evinced an intention to treat the lessee as a treepasser, and by bringing an action for ren: cqually evinced an intention to treat him as being still his tenant. Here, no 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 treating him as having been a trespasser between that date and the 14th of January, for the breach of covenant to repair was a continuing breach during that period. The defendant, however, argued that with regard to the breaches of covenant during that period he had not received any notice under the Conveyancing Act. In his op’nion the defendant had received sufllcient notice, for the premises were in tho same state of disrepair at the time when the writ was issued as they were when tho notice was given. He doubt=d whether the case of Bevan v. Barnett was rightly decided ; it was not clear whether the breach of covenant in that case was a continuing breach. He therefore thought the appeal must _bo allowed.
Bronv and Coauxs, L.JJ., concurred.-Consent, R. lVaIlace, Q,.C., and J. D. Crawford; 1[. D. Greene, Q C., and I’-mlter. Soucrrons, Lee QPembertons ; Finch §- Turner.
[Reported by F. G. Rccxaa, Barrister-at-Iaw.]
This was an appeal from a decision of Kekewich, J ., refusing to set aside a mortgage deed which the laintifis, the mortgagors, alleged to have been delivered to Llewellyn Maiixolm Wynne, their solicitor, as an escrow only. Wynne was also, as a trustee, one of the mortgagees, and Kekewich, J., refused to make an order setting aside the deed. The plaintiffs appealed.
Ti-is Couar (LINDLBY, M.R., and Lord Luntow and Currrr, L.JJ.) dismissed the appeal.
Lrnnnnr, M.R., read the judgment of the court as follows: This is an appeal by the plaintiffs from a decision of Kekewich, J ., refusing to set aside a mortgage executed by them for securing £9,000 to Lord Snfiield and others, who were the trustees of o settlement called Arthur's settlement. In order to understand the facts it is necessary to refer to the many characters filled by Mr. Wynne. He was one of the trustees of Arthur's settlement, and in that character he was one of the mortgagees. lie was also a solicitor carrying on business in partnership with his
brother Campbell W'y1me under the name of Wynne & Son, and Wynne & Son were the solicitors of the trustees. He was also carrying on the business of a banker in partnership with his brother. He was also the managing director of the plaintiff company, and in May, 1886, Wynne 6: Son were appointed managers and bankers of the company at a commission. VVynne & Son were also solicitors to the company, and Wynne 8: Son's oflice was the oftlce of the company, and Wynne & Son’s conveyancing clerk Tyler was the secretary of the company. This relation of Wynne 8: Sonto the plaintiff company is all-important in this case. As bankers and managers, \Vynne 8: Son kept the company’s accounts, and it was their duty as managers to pay the company’s money received by them as managers into their bank. Payment to Wynne 8: Son for the plaintiff company was in point of law payment to the plaintiff company. Moreover, it would be in accordance with the ordinary course of business for a banker who had to pay money for one customer to another to effect such payment by book entries—- i.e., by debiting one customer and crediting another in their respective accounts; and it would not be necessary that any cash should actually pass from the one customer to the other. Child S: Co. were Wynne 8: Son’s bankers. In May, 1892, \Vynne_& Son, as the solicitors of Arthur's trustees, received a sum of £9,500 and aid it into Child's Bank to the credit of their own account. This sum had, to be re-invested in the names of the trustees, and it appears from the correspondence that one of the trustees, Mr. Somerset, knew that Wynne & Son ad the money in their hands for re-investment. The plaintiff company had some mortgages created by them amounting to £9,183 or thereabouts, and bearing interest at 5 per cent., and one of these mortgages, for £1,600, had been called in. As early as February, 1893, \Vynne had suggested to the directors of the plaintiff company the expediency of raising money at 4}; per cent. in order to pay off these mortgages, and the directors agreed to the suggestion. With a view to raising the money necessary for carrying out this scheme, avaluation of the properties mortgaged was made in February, 1893, by Lang & Co. \Vynne appears to have ordered this, but the directors knew about it and authorized it, and the company ultimateiy paid for it. Between February and June, 1893, a sum of £9,000 was mentioned as the sum to be raised. The mode of raising it and all the details of the arrangement were left to \Vynne. He told the board he had clients who would lend it, and when the deed was executed, if not before, he referred to the lenders as the Arthur trustees. In the accounts kept by Wynne & Son there are entries which, if reliable, shew that on the lst of June, 1893, Wynne & Son transferred £9,000 from their account with the trustees to the credit of the plaintifi company. The accountto which the £9,000 was carried was headed “The London Freehold and Leasehold Property Company Mortgage Account." This ledger credit of the lst of June, 1893, is impugned by the plaintiff company as a fictitious entry not made at the time but at some later date in order to give some colour to the mortgage deed afterwards executed. Worley and Ryder, two of the directors, say they never knew anything of this entry, but this is not surprising, as they left all the accounts to Wynne & Son, and never troubled themselves about any books except the minute-books and the company’s pass-book with Wynne & Son. The £9,000 does not appear in the pass-book; but this is accounted for because the £9,000 was not to be drawn upon or used for the general purposes of the company, but was to be appropriated and applied by Wynne & Son for the speciaslegurpose of paying off the existing mortgages en the property compri in the mortgage to the Arthur trustees. [His lordship examined the evidence as to the ledger entry, came to the conclusion that it was not shewn to be fictitious or fraudulent, and proceeded :] In additionto the mortgage for £9,000, with which we are alone concemed in the present case, another mortgage by the company to other persons for £5,500 was contemplated, and on the 12th of June, 1893, Wynne S: Son, by letter, informed Worley and Ryder, two of the directors, that they (Wynne Sc Son) had arranged for the transfer of mortgages for £14,500. It is clear that this referred to the arrangements made for the abovementioned mortgages for £9,000 and £5,500. At about this time instructions were given by \Vynne & Son to counsel to prepare the £9,000 mortgage. Wynne and Tyler attended to this. The draft was settled by counsel on the 15th of June, and Tyler had it back before the 22nd of June. On the 19th of June Worley and Ryder were informed by Wynne & Son that a meeting of the board would be held on the 22nd. A meeting of the directors of the plaintiff company was accordingly held on the 22nd of June, 1893. An agenda paper for the meeting was prepared by Tyler, and this paper stated that part of the business would be to seal the £9,000 and £5,500 mortgages. The directors present on the 22nd were XVynne, Worley, and Ryder. Tyler, the secretary, was also present. The mortgage for £9,000, engrossed for execution, but with date and days for payment left in blank, was produced and discusseid, and a statement o the properties the mortgages on which were to be paid off was also reduced. After explanations y Wynne, it was “ resolved that the seal be afllxed to the mortgage for £9,000 on Victoria Warehouses and Bury-street, and that for £5,500 on all the properties subject to prior mortgages.” Both these mortgages were accordingly sealed with the company’s seal. Both Worley and Ryder signed the £9,000 mortgage as directors. Tyler also signed it as secretary. The blanks were not filled up. The document thus sealed was given to or left with Wynne ; but in what capacity is by no means clear. Worley, Ryder, and Tyler have all given evidence as to what took place when the £9,000 mortgage was sealed, and it is contcndrd by counsel for the plaintiffs that the mortgage was merely an escrow, and never became a perfected deed. \Ve are unable to come to this conclusion. It is in our opinion clear that the deed wss sealed and delivered by the company, acting through its directors and secretary, as a deed_—i 0., as a perfect instrument—and that it was so executed in order that it might be used as an operative deed for the purpose of carrying out the contemplated arrangement by which several mortgages bearing
interest at 5?; per cent. might be replaced by one mortgage bearing interest at 4} per cent. On the 28th of June, 1893, Wynne & Bon wrote to Colonel Lloyd, one of the Arthur trustees, and told him that the money received by the Arthur trustees had been invested on this mortggge. This letter was written in answer to some inquiry made by him. e date of the mortgage, the 29th of December, 1893, was, we were,,wl~ 5 the luw stationer when it was sent to be stamped. The blanks left for tge days of payment have never been filled in. The mortgage deed appears to have been keplt by Wynne & Son in a box in which they kept misce aneous deeds likely to be wanted for tgmporary _ purposes or to be stamped. This box was known as the temporary box. It was distinct from the Arthur trustees’ box and also from the plaintiff company's box. The mortgage deed was found there after Wynne’s banln-uptcy, which occurred in March, 1895. The mortgage was not entered in the company's register of mortgages, nor was it registered in the Middlesex Registry until the 22nd of May, 1897, the day after Kekewich, J ., gave judgment in the present action. It seems that at about the same time, and with a view to such registration, one of the Arthur trustees executed the mortgage. But this, of course, cannot affect the rights of the parties. Such is the history of the impeached deed. The plaintiffs seek to set aside this £9,000 mortgage on the following grounds—viz., first, on the legal ground that the mortgage never was executed as a deed, but was only an escrow ; secondly, on the equitable ground that the mortgagees never gave and that the company never got the consideration for which the mortgage was given. As regards the invalidity of the mortgage as a deed, it is urged that, although sealed, the mortgage was handed to Wynne, ggt as _one of the mortgagees npr as solicitor to the mortgagees, _but as solicitor to ,the pluintifi company, to be delivered to the mortgagees or to be kept by him as their solicitor only when the £9,000, or at least some of it, reached the plaintifi company or was applied in fipaying off the other mortgages which the company had arranged to pay o . Kekewich, J . , decided this point against the plaintiff company. \Ve take the same view. We are not prepared to go so far as to say that, as Wynne was himself one of tho mortgagees and a party to the deed, it could not in point of law be an escrow in his hands. Counsel for the defendants contended that the more fact that Wynne was himself one of the mortgagees was fatal to the deed being an escrow. They contended that to be an escrow the deed must be delivered to some person not a party taking under it; in short, to a stranger. In support of this contention reliance was placed on Co. Lit., 31,36; Shep. Touchstone, 65; and Whitt0n’s case (Cro. Eliz. 520). No doubt the language used in the authorities referred to, and reproduced in other works on real property and conveyancing, is in favour of this contention. But the language is very general, and we are not at all satisfied that the law is so rigid as to compel the court to decide that where there arc several grantees and one of them is also solicitor of the grantor and of the other grantees, and the deed is delivered to him, evidence is not admissible to shew the character in which and the terms upon which the deed was so delivered. To exclude such evidence appears to us unreasonable ; and we do not think we are compelled by authority to exclude it. We hold such evidence to be admissible, and in so doing we believe we are acting in accordance with modern authorities, beginning with Murray v. Lord Stair (2 B. and Cr. 8'2), and ending with Watkins v. Nash (23 W. R. 647, 20 Eq. 262). Upon the evidence, however, we come to the conclusion that the mortgage was a complete deed, and that it was given as such to Wynne in order to enable him to carry out the arrangements to which we have before alluded; and to carry them out as he thought proper. There remains the more difficult question whether the deed, being good at law, can be impeached in equity. The mere fact that no cash passed when the deed was executed is not enough to invalidate it. The directors knew perfectly well that no cash passed. They were not informed how Wynne intended to carry out the arrangement, but they left him to carry it out as he thought best. It is contended that he had no authority to receive the £9,000 except in cash, but he had the_cash from the trustees for investment. Whether the plaintiff" company gbtit from him is another matter. If the credit entry of the lst of June, 1893, is a trustworthy entry made by Wynne S: Son, who had the trustees’ money to invest and who were the plaintiff company’s managers and bankers, the entry will represent a real transaction between the plaintiff company on the one side and the Arthur trustees on the other. For \Vynne 8: Son, as the managers and bankers of the company, had implied authority from the company to place to their credit any money placed in Wynne & Son’s hands for the company or directed to be paid to the company; and Wynne & Son had ample authority from the Arthur trustees to deal with their money in Wynne & Son’s hands by debiting them with it and carrying the amount to the credit of any one who banked with Wynne 8: Son and who gave a proper mortgage for it. We have come to the conclusion that the credit entry was made to represent a real transaction and that if it had been known and questioned at the time no one would ever have complained of it as in any way irregular or improper. But when Wynne & Son became bankrupt and it was then discovered that they had not carried out the arrangements which were contemplated, the plaintiff company very naturally quarrelled with every step in the transaction. But the case does not by any means depend solely on the foregoing considerations. As between the plaintiff company on the one side and the Arthur trustees on the other the plaintiff company have, in our opinion, no equitable right to set aside the mortgage. 'The plaintiff company have, in our opinion, enabled their managers and bankers to make representations to the mortgagees that their money was invested on the security of property belonging to the plaintiff company. Such representation has been made; the mortgagees had every reason for believing it to be true, they did believeit to be true, and they acted on that belief by ceasing to inquire after their money. They were not bound to make any
further inquiry. Had they done soit is obvious that the deed would havebeen produced to them. _These circumstances tum the scale against the plaintiff company and distinguish this case from Wall v. Cockerell (9 J ur. N S. 447), which was so much relied upon by the counsel for the appellants. _In Wall v. C'oc/rerell there was no authority to borrow on the security of the impeached deed; there was no relation of banker and manager on the one side and customer on the other; there was no money of the mortgagees in the hands of the agent of the mortgagor ; there was no credit in account. MOPEOVGP, the mortgagor was induced to execute the mortgage by misrepresentation. Lord Chelmsford distinctly said so, and Lord Westbiiry merely said it was not necessary to put the case so high. In Coupe v. Coll;/or (62 L. T. N. S. 927) the impeached deed was held to be only an escrow; there was there no relation of banker and customer; and the mortgagees never placed money in the hands of the mortgagor’s solicitor for mvestment. On tuese grounds we are of opinion that the decision appealed from was _correct. \Ve have purposely abstained from saying anything 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. I‘he appeal must be dismissed with costs.
Izord Lunnow having agreed to this judgment before his retirement, it can be passed and entered as the judgment of the court which heard the case, and be dated the 10th of August.—-Coirivssn, Bramwell Davis, Q.C., and H. 6'. How/mu ; Rmshaw, Q, C., P. 0. Lawrence, Q,.C., and Daniel JOIN,‘ F- W/linfley. Sonicirons, Davidson §' rfforriar; Lawrence, Graham, Q Co. ,' Haslies.
[Reported by B. C. Mscxauziir, Barrister-at-Law.'_I
This was an appeal from the decision_ of the Comptroller-General of Patents, Designs, and Trade-Marks refusing to register the trade-mark
Typograph ’ in connection with unwrought and partly wrought metal :1“l8I.\\1fBClI.ll‘(d."by the appellant company, on the ground that the word
Typograph was not a_word having no reference to the character or quality of the goods ” within clause (e) of section 10, sub-section 1, of the Patents, Designs, and Trade-Marks Act, 1888. The appellant company desired to register the word “ Typograph ” as a trade-mark in connection with the wrought and unwrought metal, such as iron, steel, iron pig, iron rails, lead roll, lead sheet, iron boilers, &o., manufactured and used by them for the purposes of their business of composing-machine makers and printers according to the linotype process.
_Kniu;wrc_ir, J ., said that, regarding the word “ Typograph ” from the point of view from which, in the circumstances, the ordinary British subject would regard it in connection with the goods in question, it was impossible that any ordinary man should not conclude that the word was connected with the character or quality of the goods, and his lordship therefore dismissed the appeal.—CounssL, Moulton, Q,.C., and A. J. Walter ,Sir R. E. Webster, A.G., and Ingla Joyce. Sonicirons, Hays, Sohmettau, Q‘Ancrum ,' Solicitor to the Board of Trade.
[Reported by R. J. A. Moaarsos, Barrister-at-Law.)
This syndicate was incorporated to take over the undertakings of three other companies formed for the pu ose of acquiring sites and erecting seats for viewing the Diamond Jiihilee Procession. The memorandum of association also contained clauses giving as the other objects of the company “ (d) To carry on all kinds of promotion business, and in particular to form, constitute, float, lend money to, assist, and control any companies, associations, or undertakings whatsoever, including any companies, associations, or undertakings for the purpose of acquiring all or any of the property and liabilities of this company; (a) to act as house agents, surveyors, and builders; (f) to acquire, sell, and deal in ro_oms, premises, stands, seats, and places of observation in connection with any procession, spectacle, entertamment, sports, exhibition, and demonstration or public gathering of any description, and to supply refreshments or lodgings and accommodation for any persons attending, witnessing, or interested in the same.” The euterprize had resulted in a loss over the Diamond Jubilee. The directors now proposed to carry on other businesses contained in the other clauses of their memorandum of association. A shareholder who objected presented a petition for the compulsory winding-up of the syndicate on the ground that the substratum of the company was gone as the Diamond Jubilee was over, and that it was “ just and equitable ” that the court should order the syndicate to be wound up.
VAUGHAN Winnisirs, J ., held that the petition could be supported under section 79, sub-section 5, of the Companies Act, 1862; that the syndicate was formcd for the purpose of taking over the undertakings and assets of the three companies with reference to the Diamond J ubilec; that
the Jubilee was over, and all profit or loss gained or incurred in carrying out the primary objects of the syndicate was at an end. The directors were competent to wind up the company, and the court would not interfere if the company and its directors and officers would do so; but in contemplating carrying on the business when the main object of the company had ceased to exist the directors were acting ultra vireo, and the later object-clauses of the memorandum of association should not be read as defining a succession of objects different from the main object, but as referring to matters incidental to it, and that therefore the court should make a winding-up order.—Counsai., Alexander, Q.C., and Hon. M. Maezzoghtan; Bramwell Davis, Q,.C., and W. E. Vernon; Grazebroolc; Stewart Smith; W. do B. Herbert and J. Ashton Cross. Sonicrroas, W. H. Smith if Son; John Vernon, Son, Q Stephen ; Ores.-swell 55' Co. ; Julian Ellis; French 5- Co. ; E. R. Donisthcrpe. [Reported by C. W. Mun, Barrister-at-Law.)
This was a special case stated by 'ustices for the county of Southampton. An information was preferred lay the appellant against the respondent at Ryde Petty Sessions charging him with unlawfully sellinga weekly newspaper on the Sandown esplanade contrary to the bye-laws of the sanitary authority, the Sandcwn Urban District Council. 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 public walks or pleasure grounds by virtue of the provisional order of the Local Government Board, duly confirmed by the Local Government Board’s Provisional Orders Confirmation (Caistor Union, &c.) Act, 1877. By section 7 of the same Act the Sandown Local Board were authorized (subject to the provisions of the Public Health Act, 1875) to make byelaws and regulations with reference to the sea beach and foreshore along the whole frontage of their district (no reference being madc to the csplanade, which was constructed on part of the sea beach or foreshore subsequently tothe passing of the Act). In pursuance of that section and of section 164 of the Public Health Act, 1875, the Snidown Local Board, then being the sanitary authority for the urban sanitary district of Sandowu, in 1892 duly made certain bye-laws, of which the one in question was as follows: “A person shall not on any part of the sea beach, foreshore, or esplanades sell or offer or expose for sale any commodity cr: article, or let to hire or offer or expose for hire any chair, seat, or other thing except by the direction of the sanitary authority, or in such part or parts of the sea beach, foreshore, or esplanades (if any) as the sanitary authority may by notice affixed or set up thereon from time to time appoint for the purpose, and every person who shall offend against such bye-law shall be liable to a penalty of -10s.” The justices were of opinion, on the authority of Munro v. Watson (51 J. P. 660) and Johnson v. Mayor of C'ro_i/don (16 Q. B. D. 708), that the bye-law was illegal, inconsistent, unreasonable, and repugnant to the law of England, in that it enabled the sanitary authority of Sundown to legalize a nuisance, or prohibit a lawful act which was not a nuisance. The justices, therefore, dismissed the information.
Tris Coon-r (the Masrnn or rm: Roi.i.s and Cinrrr, L.J., sitting as a Divisional Court of the Queen’s Bench Division) allowed the appeal.
The MASTER or ri-iii Roi.i.s said that in coming to adecision on this case it was necessary to look at the statutory authority under which the byelaw 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 out thereon an esplanade, and to make bye-laws and regulations with reference to the sea beach and foreshore along the whole frontage of the district. Under that section the local authority had made the bye-law in question. The justices had come to the conclusion that the bye-law was invalid as being more extensive than the circumstances of the case required. His lordship was not prepared to go that length. In his opinion the bye-law was not unreasonable or ultra vires. The cases relied on by the justices were decided under the Municipal Corporations Act, 1882, the language of which was very different, and the bye-laws made under that Act were addressed to a different subject-matter from the present. It was one thing to make a bye-law for the good government of a town and another for the regulation of an esplanade on the sea shore. For the latter purpose it was not unreasonable for the local authority to say that nothing should be sold on the esplanade without their direction. The appeal would therefore be allowed.
Ciiirrv, L.J., concurred. Appeal allowed.—CoimsiiL, Mocmra-an, Q,.C., 0'. A. Russell, Q,.C , and Dunlap Hill. Sonrcircas, Wood, Bigy, §~ Nash, for Wooldridgs §- Wilton, Sandcwn; Hopwood, Straughill, Q Hopwood.
BAKER v. WILLIAMS. Div. Court. 1st Nov.
Special case stated by justices for the borough of Scuthport. The appellant, a dairymau and cowkeeper, had been convicted for contravening a regulation, which purported to be made under the Contagious Diseases (Animals) Act, 1878, and the Dairies, Cowsheds, and Mllkshops Order of 1885, and was dated the 8th of April, 1890. By section 34 of the Contagious Diseases (Animals) Act, 1878, the Privy Council was empowered to make orders (inter alia) “ for the inspection of cattle in dairies
and for prescribing and regulating the lighting, ventilation, cleansing, drainage, and water supply of dairies and cowsheds," and " for authorizing a local authority to make regulations for the purposes aforesaid or any of them"; and by section 58 an order of the Privy Council under the Act is to have effect as if it had been enacted by the Act. The Privy Council made an order under the Act intituled the Dairies, Cowsheds, and Milkshops Order, 1885, which provided by article 7 that it should not be lawful for acowkeeper to begin to occupy a dairy or cowshed unless he first made provir-ion to the reasonable satisfaction of the local authority “ for the lighting and ventilation, including air space, and the cleansing," &c., of the same. By article 8 it was provided that it should not be lawful fora cowkeeper to occupy any cowshed, whether old or new, “ as long as the lighting and the ventilation, including air space, and the cleansing,” &c., were not such as were proper. By article 13 (b) ower was given to a local authority to make rules for “ regulating the lighting, ventilation, cleansing, drainage, and water supply of dairies and cowsheds.” Under this order the Corporation of Southport made u reguation (under which the appellant was convicted) providing that in cowsheds in the borough there must be at least 800 cubic feet of free air space for each animal. It was contended—(1) that the regulation in question was one that could not be made by the mayor, aldermen, and burgesses as the local authority under the Order of 1885; (2) that the word “ ventilation ” in the 13th article of such Order did not authorize any regulation with regard to the quantity of air space; (3) that the rovisions of section 34 of the Contagious Diseases (Animals) Act, 1878, did not authorize the making of any order of the Privy Council regulating air space or free air space; and that, therefore, in so far, if at all, as the Dairies, Cowsheds, and lllilkshops Order of 1885 imposed any restrictions 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 ofPalent Agents v. Lockwood (1894, A. C. 34), Reed v. Harvey (5 Q. B. D. 184), and Ea: parts Foreman (18 Q. B. D. 393) were cited.
Waionr, J ., after referring to the Act and the Order of 1885, said the question was, Did those words give the power to the local authority to 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 article 13. The order under the Act was to have the effect of an Act of Parliament. iVhat was the effect of that? The case of Insiilule of Patent Agents v Lockwood showed that, in such a case, the Order and statute should be read together. Following that principle, there was no inconsistency in interpreting article 13 of the Privy Council Order as giving power to the local authority to make regulations in respect of “ ventilation and air space.”
KENNEDY, J ., concurred. This was a case of ii conviction for breach of the regulations as to cowsheds. Tho regulation was said to be ultra vires. It seemed to the learned judge that there was nothing wrong in a Privy Council Order underthe Act dealing with air space. In fact, they had provided for air space as well as ventilation for all dairies and cowsheds, both old and new, though it was diflicult to see why in articles 7 and 8 ventilation and air space were included and not in article 13. The decision of the magistrates was right Appeal dismissed.—0ouussr., Moullon, Q.O , I’ickford, Q.C., and Horridge ; Jllacmorran, Q.O., and G. H. Pollard. SOLICITORS, Pritclaard, Engle;/ielrl, §- 00., for Arthur S, Mather, Liverpool; J. Davies William, Southport.
Appeal from the refusal by the Registrar of the Halifax County Court to appoint a referee to settle a difference between the landlord and tenant as to the compensation ayable to the latter under the Agricultural Holdings Act, 1883. Morley was tenant from year to year, and Carter was landlord of a farm and buildings under a lease which provided that on notice to quit being given the land included in the holding should be given up on the 2nd of February and the buildings on the 1st of -May in any year. The tenant, in June, 1896, gave a notice (which was admitted to be in order) that he would quit the holding on the 2nd of February, 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 26th of February, 1897, he gave notice to the landlord that he intended to claim compensation under the Agricultural Holdings Act, 1883. On the 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
ord to appoint a referee on his behalf. The landlord did not appoint a referee, and on the 14th of June the tenant applied, pursuant to a summons, to the county court to appoint a referee. The application was by consent heard by the registrar. Section 7 of the Agricultural Holdings Act provides that notice of an intention to claim compensation must be given by the tenant to the landlord “two months at least before the determmation of the tenancy.” Section 9 (6) requires the county court to appoint a referee if for fourteen days after notice by one party to the other to appoint a referee the other party fails to do so. The registrar refused to make the order on the ground that the tenancy was determined on the 2nd of February, 1897, and that the notice of claim not having been given two months prior tothat date the provisions of section 9 as to the appointment of a referee did not apply. The tenant appealed, and contended that_ the tenancy was not determined until the lst of May, when the buildings were given up, and that the notice of claim was there
fore given in time. Re Paul (24 Q. B. D. 247) and Blavl: v. Clay (1894, A. O. 368) were cited.
Trra Covnr (Wnicirr and Ksynsvr, JJ.) dismissed the appeal.
\Varcir'r, J .—-Having regard to the Scotch case (Black v. Clay), I think there is no real doubt in this case. The substance of the matter is this : Section 1 of the Act says that a tenant shall be entitled “ on quitting his holding on the determination of a tenancy " to obtain compensation for certain improvements By section 54 the Act is not to apply to a holding that is not either wholly agricultural or wholly pastoral or in part agricultural and as to the residue pastoral; and section 61 says that “ ‘ holding ’ means any parcel of land held by a tenant." The Act, therefore, coutemplates compensation being given in respect of an agricultural or pastoral holding on the determination of the tenancy of such a holding. On the 26th cf February, when this notice was given, there was no tenancy of an agricultural holding; the time within which notice of a claim under the Act could be given expired two months before the 2nd of February. This view is strongly confirmed by the case of Black v. Clay. And Re Paul, as I read it, was decided on the ground that the tenant had retained 200 acres of agricultural land, and that, therefore, his tenancy still subsistsd. The appeal must be dismissed.
KBNNBl)Y, J ., agreed. Appeal dismissed.-— COUNSEL, Beverley ; Clavell Saller. SOLICITORS, Turner 4- 00., for Percy Nuylor, Keighley ; Bower, Collon, if Bower, for Lonybotlom 5' Sons, Halifax.
Case stated by justices of Southampton. An application was made by Mr. Lewis under section 28 of the Tithe Commutation Act that the justices of the Droxford Petty Sessional Division should make an order to remove the tithe apportionment and map of the parish of West Meon from the custody of the respondent, the Rev. Canon Poole, rector of the garish, and direct that the same be deposited in the custody of the
arish Council of West Meon. The justices refused to make the order on the ground that they had no power to do so under the section. The appellant contended that the documents ought to be in the custody of the parish council, and that the respondent was a “ person other than the person legally entitled to the possession” of the said documents within the meaning of section 28 of the Tithe Commutation Act, 1860. The respondent denied that he was not a proper person to retain the custody of the documents, and contended that the documents did not come within section 17, sub-section (8), of the Local Government Act, 1891. He submitted that the resolution and order of the parish council could. not be enforced under section 28 of 23 & 24 Vict. c. 93.
Tun Cora-r (Wiuonr and Ksuxsnr, JJ.) decided that the magistrates had power to make the order sought for.
\Vaiciir, J ., said the court hadtwo questions to determine-(a) the power of the parish council, and (b) what was the procedure that ought to be followed? The Local Government Act, 1894, s. 17, provided that documents directed by law to be kept with public books and papers should either remain in their existing custody or be deposited in such custody as the parish council might direct. By section 28 of 23 & 24 Vict. c. 93 the just ces had jurisdiction to order documents of this kind to be deposited in such custody as they thought flt. In his opinion the Local Government Act of 1894 had changed or modified the jurisdiction which justices formerly held, and they ought to hesitate before overriding the resolution 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 tlthe map and the like was therefore changed, and it was the person designated by the parish council who was now the person legally entitled to the custody t ereof. The case must go back to the justices with an intimation that they had power to make the order applied for.
Karmanr, J ., concurred.—Couivsar., Lord Coleridge, Q.C., and Uanccllor, for Mr. Lewis; llavmorran, Q.O., and Gallon, for Mr. Poole. SOLICITORS, Atlree, Johnson, 4- Ward, for Shit-ld §- llackarneas, Alresford and Petersfield; E. W. Paterson.
In this case a rule nisi had been obtained for a mandamus calling on Mr. Mead to shew cause why he should not hear and determine a summons under the London Building Act, 1894, in respect of a dangerous structure. On the 22nd of September, 1897, the London County Council applied for a summons under section 107 of that Act returnable before Mr. Mead on the 1st of October. It was addressed " To the Owner ” of the premises merely. The owner was called upon to appear but made no response, and the complainant proposed to proceed in his absence on proof that a cosy of the summons had been aflixed to the premises, and that he had fa ed on inquiry to ascertain to whom the premises belonged. He sub
mitted that the service was u good service under section 188 (i.) of the Act.