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The Solicitors’ Journal and Reporter.




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',‘ The Editor cannot undertake to retum rejected contributions, and copies should be kept or all articles sent by writers who are not on the regular staff of the JOURNAL.


horn, & Co. (Liin.), Re ......... .. Clarke v. Pountney and Others .. Grant v. Hillam ............................... .. 35 Heywood 33


1 c ( eceu ), n e 0 Gordon, In re. Ex Ilill v. Rowlands ............................ ..


31 26

Contents. Ousslirr Torios .............. ..... ......... .. 25 New ORDERS, 8:0. . .. . ........ 31 JUDICIAL Berni. or run Siirrnnn LAW Boois'riss.. 85 Lssn Acrs ................................. .. 28 LIGAL News .... .. 85 Rscssr Dscisioxs ox Cour:-rr COURT Coon-r Psrsris ............ .. 86 Jimisiwic-rios sxn PRACTICE .......... .. 29 Wiuniso Ur No-rions .. 36 Rrviiiws ............................. .. 30 Cs:ni'rons' Noriors..... 86 Cosarsroiwnluol ............................ .. 30 Bssnur-ror Noriors........ 87 Cases Reported this Week.

In tlw Solicitors’ Journal. In tlw Weekly Reporter.

An Arbitration between Palmer &Co. British Natural Premium Provident and Hosken, Trevithick, Polking- Association (Limited) v. Bywster 23 Ch'lott D sed I th Goods I 32

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Reg. v. Burrows and Another (Justices). Ex parte Wilson's Charity, In re .

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a ey v reenw Pollock v. Gurle .... .. 32 Small nnd Others v. U ted Shaw v. Lutman 34 Mutual Marine Insurance AssociaStern v. Te er ............................... .. 81 tion ............................ .. Williams ii-Alppellsnt) v. Llandudno Bmith v. Smith ............. .. District Council (Respondents) .... .. 34 Wood v. Mayor of Widnes


THE BUSINESS under the Bankruptcy and Companies (Winding-up) Acts will for the future be transacted by Mr. Justice Wniom.

THERE is some reason to suppose that, notwithstanding the terms of the above announcement, the arrangement is not likely to be permanent. The circuit duties of a judge of the Queen’s Bench Division render his appointment as the windingup judge very undesirable. \Vhy should not the business be

'°' FLEET STREETLONDONl distributed among the judges of the_Chancery Division as in the

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WE ARE requested, for the convenience of the profession, to repeat the announcement we made last week, that the practice of entering judgment in default of defence without order, under ord. 27, r. 2, is not to be considered as in any way interfered with by ord. 30, r. 1 (6).

IT is well settled that a. company incorporated under the Companies Acts cannot, by any provisions in the memorandum or articles of association, escape from the fundamental condition that every share must be issued subject to the payment of the full nominal value either in cash or by other means protected by a. duly registered contract. The final development was given to this doctrine in TVolton v. Saflbry (~15 W. R. 508), where the House of Lords held that the full amount was payable, even though there were no claims 0! creditors in question, and the calls were made solely for the adjustment of the rights of contributories inter ae. A similar principle has now been applied by BYRNE, J., in deciding that a. company cannot by its articles deprive a contributory of the right to petition for a. winding up of the company conferred by section 82 of the Companies Act, 1862. In Re Peveril Gold 1llinea(Lz'mit@d) the articles of the company provided that no winding-up petition should be presented by a member unless with the consent in writing of not less than two-thirds of the board of directors, or in pursuance of a resolution passed by a majority at a general


meeting, or unless the petitioner or petitioners should hold not less than one-fifth of the issued capital of the company upon which all calls should have been paid. An attempt was made to support this provision upon the familiar ground that the articles form a contract between the members and the company, and that a member was prohibited by his contract from bringing a petition unless the requirements of the article had been complied with. But it seems probable that the contract is only valid in so far as it deals with matters which the statutes have left open, and that members cannot by a provision in the articles be deprived of a right which has been expressly conferred upon them by the Legislature. Such rights appear to be as much a part of the constitution of the company as the liability to pay the nominal value of shares. Looking at the matter from a practical point of view, this result is clearly required in the interest of investors. It is rare, as BYRNE, J ., pointed out, that a person who is applying for shares in a company first peruses the articles, and it would be an extremely unfortunate state of

-thin s if the safeguards which the Companies Acts have provided

could be dispensed with by provisions inserted at the instance of the promoters. Notwithstanding the above clause, therefore, a petition presented by a shareholder in the company was allowed to be proceeded with.

Loiin HaLsiiuiiY’s usual good-humoured equanimity appears to have been considerably perturbed by the recent storm of criticism. Veiling his remarks under the guise of eulogy of the late Master of the Rolls, he said, at the Lord Mayor’s banquet, that Viscount Esnna was a great lawyer, and added: “In saying that I am aware that I am expressing a difierent opinion from that of those gentlemen who are good enough to arrogate to themselves all wisdom and a perfect knowledge of everything.” But, so far as we know, this is the opinion which was expressed by the organs of public opinion upon Lord Esnn’s retirement. We are not aware of any public comments which were inconsistent with this view. Who, then, can the “gentlemen” be who are referred to in these very scorching terms? Surely not any public commentator on Lord Esnna’s career? But Lord HALSBUBY proceeded to point his moral by developing the crowning merit of the late Master of the Rolls. “ Besides being a great lawyer, he was a high-minded English gentleman. He cared nothing whatever for the momentary opinion. He did what he thought was right, and cared not for commentary or blame if, in his view, he was doing what was right and just, still less if he thought that commentary was tamted with the poisoned breath of political animosity." Now, we do not recall any instance in which Lord ESIIER suffered at all from public commentary or blame, still less from “the poisoned breath of political animosity.” He was preeminently a shrewd man of the world, not in the least likely to go out of his way to raise up enemies. These observations must be taken to have indirect reference to the action of another personage, and it is worth while to consider whether they will bear the test of examination. According to the Lord Chancellor, the characteristic of “a high-minded English gentleman” is that he holds the test of the rightness and justice of an act to be his own view that it is right and just. If he thinks that what he is doing is right and just he may be altogether callous to the opinion of others. That was the opinion of DIOGENES, but is it not rather odd doctrine to be laid down by the Keeper of the Queen’s Conscience ? Suppose “a high-minded English gentleman” thinks it “right and just” that he should marry his deceased wife's sister. He deems the existing state of the law wrong and unjust. He may entrench himself in his sense of rectitude, and personally bear with equanimity the rellections of his acquaintances. But is he justified in paying no regard to the social stigma which will be inflicted on the woman he proposes to marry, and on the offspring of the union? So, we may ask, when a judicial appointment is proposed to be made which the appointor may consider “right and just,” but which he knows will not be so considered by the legal profession and the public, is the appointer justified in ignoring the consideration of the injury to the reputation of the Bench likely to be occasioned by- an appointment which, to the world at large, will appear to be a

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political job? Is not the reputation of the Bench of infinitely more consequence than the reputation of the appointor?

Au INTERESTING point arising under the Local Government Act, 1894, was decided by a Divisional Court (Waioiir and KENNEDY, JJ.) in the case of Lewis v. Poole (ante p. 14). The question was as to the right of custody of the tithe apportionment and map of a rural parish. The Tithe Act,_ 1846 (6 & 7 Will. 4, c. 71), ss. 63, 64, provides for the annexation of the map to the instrument of apportionment, and enacts that one copy of the instrument_ shall be deposited with the incumbent and churchwardens of the parish, and shall be kept by them with the public books, writings, and papers of the parish.” The Tithe Act of 1860, s. 28, enacts that when a person other than the persons legally entitled to possession of these documents is actually in possession of them, two justices, upon the application of any persons interested in the lands or rent-charge, may order the documents to be removed from their existing custody and to be deposited in such other custody as the justices, having reference to their security and due preservation, and to the convenience of the parties interested, think fit. This being the state of the law when the Local Government_Act, 189-1, came into operation, that Act, by section 17 (8), provided that certain church registers and all other documents containing entries relating to the aflairs of the church, except “ documents directed by law to be kept with the public books, writings, and papers of the parish,” should remain as provided by the existing law, and that all other public books, &c., of the parish, and all documents directed by law to be kept therewith, should either remain in their existing custody or _“ be deposited in such custody as the parish council may direct”; and the county council is to determine any difiference as to custody or access. In the recent case the tithe apportionment and map were in the custody of the incumbent in the year 1895 ; in that_year the parish council resolved that they should be placed in their own custody. The incumbent refused to give them up, and on the application of the parish council the county council made an order (finally drawn up and sealed in February, 1897) that they should be deposited in such custody as the parish council should direct. The incumbent still declining to part with them, the chairman of the parish council applied, under section 28 of the Act of 1860, for an order that the documents be deposited in the custody of the parish council. The justices declined jurisdiction. Upon the appeal, the court had little difliculty in lioldmg that the parish council were entitled to the custody; it would have been difiicult to hold otherwise having regard to the language of the sections of the Acts of 1846 and 1894 above referred to. _ The further question arose as to whether the ijustices had jurisdiction to make the order under section 28 of the Act of 1860. That section clearly contemplates a judicial act on the part of the justices, and in the present case they were merely asked to make a ministerial order to give efiect to the decision of the county council. The court, however, held that th_e effect of the Local Government Act, 1894, was to give_ the justices jurisdiction to make such a ministerial order. This decision is in accordance with good sense; were the law otherwise it is difficult to imagine by what machinery efiect could be given to an order which a county council is expressly empowered to make by section 17 (8) of the Local Government Act, 1894.


Ar THE Worship-street police-court this week a married woman applied for, and obtained, an order agaiiist her husband for maintenance under the Summary Jurisdiction (Married \Vomen) Act, 1895, on the ground of his dese_rtion. _ The facts were peculiar, and raised a somewhat interestingpoiut of law. It was proved that the woman had some time previously left her husband of her own accord, and had taken out a summons for maintenance against him under the same Act, on the ground that he had been guilty of persistent cruelty towards her, and by such cruelty had caused her to leave him. In these proceedings, however, she was unsuccessful, as the magistrate found that the charge of cruelty had not been proved. The woman then offered to return to her husband, but he refused to receive her back, hence the second summons. The question was


‘whether, under such circumstances, the refusal of a husband to resume cohabitation amounts in law to desertion. The magistrate was of opinion that such refusal did constitute desertion, but offered to state a case for the decision of the High Court. Unfortunately, however, it seems to be improbable that the parties will carry the matter further. It is not easy to reconcile the.magistrate’s decision with cases decided by the High Court. In Pope v. Pope (36 W. R. 125, 20 Q. B. D. 76) the parties were living aplart by mutual consent, when the husband, having ceased to pay t e agreed weekly sum, was proceeded against for maintenance under the Married Women (Maintenance in Case of Desertion) Act, 1886. It was held, however, that there was no evidence of desertion, as desertion “implies that the parties are living together at the time when the desertion takes place.” In the later case of Reg. v. Lerascha (40 W. R. 2; 1891, 2 Q. B. 418) the circumstances were similar; but in this case, after the husband had refused to continue the payments required by the separation agreement, the wife had offered to resume cohabitation. Nevertheless the Court of Appeal held that there was no desertion, as desertion implies an active withdrawal from a cohabitation that exists, while here cohabitation had ceased by mutual consent, and that the refusal of the husband to return to cohabitation could not amount to constructive desertion. The court also cited with approval the judgment in Fitz!/erald v. Fz'i:_qeral(l (L. R. 1 P. & D. 694), in which it was said that “ desertion implies an active withdrawal from a cohabitation that exists. . . . If the state of cohabitation has already ceased to exist, whether by the adverse act of husband or wife, or even by mutual consent of both, ‘desertion’ becomes from that moment impossible to either-—at least, until their common life and home have been resumed." These two last-mentioned cases were recently commented upon by the two judges of the Probate, &c., Division, sitting as a Divisional Court, in Bradshaw v. Brads/raw (45 W. R. 142; 1897, P. 24). Both judges agreed that cohabitation may possibly exist although the parties do not live under the same roof, as in the not uncommon case of married domestic servants ; but they also agreed that there cannot be desertion of a wife by a husband unless an existing state of cohabitation is broken by some act of desertion. Applying these principles to the recent case, we find that the wife herself deliberately put an end to the state of cohabitation, left her husband, and swore that she had been compelled to leave him by his cruelty. The court which heard her first charge found, in effect, that she had left him without sufficient cause. It must be assumed, therefore, that the woman had wrongfully put an end to the previously-existing cohabitation, and, on the strength of the authorities above referred to, it is submitted that the husband’s subsequent refusal to resume cohabitation cannot in law amount to desertion, and that the magistrate should have refused the woman's application.

An mronrsnr question as to the procedure to be adopted when an arbitrator refuses to state a case for the opinion of the court has been decided by the Court of Appeal in Ra Palmer §' Co. and Hacker: ff Co. By section 19 of the Arbitration Act, 1889, it is provided that an arbitrator may at any stage of the proceedings under a reference, and shall, if so directed by the court or a judge, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference. The operation of this provision is clear if the arbitrator, upon request being made, consents to state a case, and it is also clear if, although he himself declines to state a a case, he adj ourns the hearing of the reference for the purpose of enabling application to be made to the court. But no express provision is made for the case where the arbitrator refuses to state a case and also refuses to adjourn the hearing. Under such circumstances the reference must proceed, and the award will be made without the party whose application for a case has been refused having any opportunity of securing the intervention of the court. In the case in question a dispute had arisen with res ect to short delivery of a cargo of wheat, and the directors of the Eiverpool Corn Trade Association, to whom an appeal had been made against the award of the arbitrators, refused to state a case at the request of the buyers of the cargo with reference to the liability of the sellers to make good the deficiency ;


19 of the Act it is clearly the right of the party who in good faith wishes to have a case stated to obtain, if he can, an order of the court overruling the refusal of the arbitrator, and this is a right which the arbitrator is bound to respect. The remedy of the aggrieved party consequently depends on section ll, which enables the court, in the event of an arbitrator misconducting himself, to'set aside the award, and on section 10, which enables the court to remit the reward to the reconsideration of the arbitrator. Misconduct in an arbitrator by no means implies moral blame. It includes any breach of his duty to conduct the proceedings in a proper manner. An arbitrator, for instance, is guilty of misconduct if he hears, or receives evidence from, one party in the absence of another. Hence there is misconduct when an arbitrator deprives a party of his right to apply to the court to have a case stated, and accordingly the court may either set the award aside or may act under the more general power of section 10, and remit the award with a direction that a case is to be stated. In Ra Palmer it Co. and Hbslwn pt Co. the Court of Appeal upheld the order of DAY, J., adopting the latter alternative.

THE DECISION of the Divisional Court in Gallagher v. Rudd (ante, p. 15) is of considerable importance as settling a point on which there seems to have been a good deal of misunderstanding, although really the point appears to be one of no difficulty. The appellant was the manager of a theatre at Stockton, and he had been convicted by the justices of the borough of selling liquor during prohibited hours—z'.a., after ll p.m., shortly after the theatre had closed. From this conviction he appealed to the High Court, but failed in convincing the judges that there was anything improper in his conviction. The law seems very clear. The managers of a properly-licensed theatre do not require a licence from justices to sell intoxicating liquors, but they do require an excise licence so to do under 5 &. 6 Will. 4, c. 39, s. 7. Now, section 3 of the Licensing Act, 1874, provides that “all premises in which intoxicating liquors are sold by retail shall be closed" at certain times which are therein stated. Section 9 then goes on to provide that “any person who, during the time at which premises for the sale of intoxicating liquors are directed to be closed by or in pursuance of this Act, sells or exposes for sale in such premises ” any liquor, shall be liable to a penalty. It will be noticed that the Act expressly says “all premises,” and there seems little to support the argument that these words should be read as equivalent to “all premises licensed by justices.” The question, moreover, seems to have been already decided by the High Court in Jllartin v. Barker (29 W. R. 789). In that case the appellant held merely an excise licence to sell spirits to be consumed off the premises. He was, however, convicted of selling such liquor during prohibited hours, and on appeal this conviction was upheld. HAWKINS, J., said, “It has been argued that section 3 only applies to premises licensed by justices for the sale of intoxicating liquors, but there is nothing in the Act of 187 4 which indicates this conclusion. We have been referred to the Act of 1872, but by section 73 (2) of that Act it was clearly contemplated that there might be premises used for the sale of intoxicating liquors for which a licence by justices was not required. This very section recognizes a sale of intoxicating liquors in pursuance of an excise licence, not only wholesale but retail."

The articles on “ The Compulsory Summons for Directions ” which recently appeared in this journal have been revised and added to by the writer, and are now published by Messrs. Sweet & Maxwell as a separate pamphlet. It constitutes a practical treatise on the new order 30, bringing together the numerous points of difliculty arising thereon, side by side with suggestions for surmounting them.

Among the numerous legal diaries which are before the (profession Sweet & Maxwell's Diary for Lawyers, 1898, has several istinctive features. It contains a “ Courts Directory," giving the names of the officials in the Royal Courts and shewing the position of their respective rooms ; elaborate time-tables in the Supreme Court, bankruptcy, and the county courts, and for appearance on writs served out of the jurisdiction, and gazetteers shewing country county court districts and bankruptcy county court districts, with a variety of other matters There are some very convenient tables of convey

and also refused to adjourn the proceedings. But under section I ancers’ stamp duties, edited by Mr. F. Stroud.


Ir should be observed that the decision in Ra Tibbits' Estates, that after the execution of the disentailing assurance and resettlement the sale had to be made under the powers conferred by the compound settlement formed by these instruments and the original settlement, is not only wrong if the above reasoning is correct, but it is in express contradiction to Re Jfnowles’ Settled Estates (27 Ch. D. 707), in which case land was settled on A. for lite, with remainder to her children by B. as he should appoint; B. appointed to (J., adaughter, in fee; C. settled her remainder on her marriage, and it was held by Pearson, J., that the original settlement was the settlement under the Act.

That part of the decision in R0 Tz'bbz'ls’ Estates which declared that the trustees under the original settlement were, after the charges created by Mrs. Trnnrrs on her life estate, on her several marriages, incompetent to give discharges for purchasemoneys, so that trustees of the compound settlement, formed of all these instruments, had to be appointed for that purpose, turned on the construction of the Settled Land Act, 1890, s. 4 (1), which provides that:

“Every instrument whereby a tenant for life, in consideration of marriage, or as part or by way of any family arrangement, not being a security for payment of money advanced, makes an assignment of or creates a charge npon his estate or interest under the settlement, is to be deemed one of the instruments creating the settlement, and not an instrument vesting in any person any right as assignee for value within the meaning or operation of section fifty of the Act of 1882.”

The object of this provision is obvious; it is to render it unnecessary for a person entitled to pin money, &c., charged on the life interest of the tenant for life to concur in the exercise of his statutory powers: see Settled Land Act, 1882, s. 50. There is, perhaps, some little did-lculty in the construction of the section, depending on the meaning of the word “settlement.” It is clear that where the Act speaks of the tenant for life assigning or charging “ his estate or interest under the settlement,” by “the settlement” is meant a settlement existing at the date of the assignment or charge; and where, as part oi the same sentence, it is said that the instrument by which the assignment or charge is made “is to be deemed one of the instruments creating the settlement," the words “ the settlement" must bear the same meaning in both places—in other words, the subsequent instrument is to be deemed to be one of the instruments by which the original settlement was created, and therefore the trustees of that settlement remain trustees for tlae purposes of the Settled Land Acts after the execution of the c arge.

There is another, and perhaps a more potent, argument against the decisions in Ra Meade’: Settled E-status and Rs Tibbits’ Jirtatea. In each case the decision was to the effect that an instrument executed while there existed a tenant for life, and trustees for the purposes of the Settled Land Act, of a settlement, forming together with the original settlement a compound settlement, prevented the exercise by the tenant for life of the powers conferred on him by the Act as tenant for lite under the original settlement. Now, the Settled Land Act, 1882, provides by section 51 (1), that

If in' n settlement, will, assurance, or other instrument executed or made before or after, or partly before and partly after, the commencement ot this Act, a provision is inserted purporting or attempting, by way of direction, declaration, or otherwise, to forbid atenant for life to exe_rc1_se any power under this Act, or attempting or tending or intended, by a limitation, gift, or disposition over of settled land, or by a limitation, gift, or disposition of other real or any personal property, or by the imposition of any condition, or by forfeiture, or in any other manner whatever, to prohibit or prevent him from exercising, or to induce him to abstain from exercising, or to put him into a position inconsistent with his exercising, any power under this Act, that provision, as far as it purports or attempts or tends, or is intended to have, or would or might have, the operation aforesaid, shall be deemed to be void.

_ This provision may be stated concisely as follows: “If In any instrument a provision is inserted attempting or tending 111 any manner to prevent the tenant for lite from exercising, or to put him in a position inconsistent with his exercising, any power under this Act, that provision, so far as it attempts or tends or might have that operation, shall be


deemed to be void.” It the above-mentioned decisions are correct, the subsequent instrument contained a provision preventing the tenant for life from exercising his powers under the Act unless he obtained an order of the court appointing trustees of the compound settlement; non-consta-t that he will obtain the order, and even if eventually he obtains it, there might be an interval of time after the execution of the jointure deed and before the order is obtained, during which he would be unable to exercise his statutory powers. It appears, therefore, that, to the extent to which the execution of the subsequent instrument created a compound settlement, it put the tenant for life in a position inconsistent with his exercising the statutory powers under the original settlement, and that it must therefore to that extent be void.

Notwithstanding the reasons for believing that the above-mentioned decisions are incorrect, it will be necessary for the practitioner to act as it they were correct, and the following points, some of which have been before mentioned, should be attended to.

(1) In every settlement there should be inserted, either an express power of sale, or a provision that “ The said A. and B., or the survivor of them, or other the trustees or trustee of these presents, shall be the trustees or trustee of these presents, and of every compound settlement consisting of these presents and any other instrument or instruments for the purpose of the Settled Land Acts, 1882 to 1890.” It the latter plan is adopted, it may be safer to insert in every instrument, which together with the original settlement may form a compound settlement, a declaration that “the persons or person who shall for the time being be the trustees or trustee for the purposes of the Settled Land Acts, 1882 to 1890, of the recited indenture of, &c. (or will—-5.0., tbs orzyz'nal settlement), shall be the trustees or trustee for the like purposes of the compound settlement formed by the recited indenture of, &c. (or will) and these presents.”

(2) Every instrument which together with the original settlement may constitute a compound settlement should be abstracted, except in cases where either of the schemes mentioned in the last preceding paragraph has been adopted.

(3) If a compound settlement exists, the vendor's solicitor should either procure trustees of that settlement to be ap ointed, or should be prepared to advise his client to go to the gourt 0! Appeal on a vendor and purchaser summons. OE course this will be unnecessary if the tenant for life is created under the last of the instruments creating the compound settlement, and the sale is made subject to the provisions of the earlier instruments, or with the concurrence of the beneficiary under those instruments, or, in cases where the provisions of the Conveyancing Act, IBBI, s. 5, are applicable.

(4) On the investigation of the title, the purchaser’s solicitor should make inquiries whether any instrument creating a compound settlement has been executed. If he meets with a refusal to answer his inquiries (see Ford §~ He'll, 10 Ch. D. 365), he may reasonably point out the serious consequences that may follow if the vendor, or his solicitor, knowingly conceals the fact that such instrument has been executed (see 22 & 23 Vict. c. 35, s. 24). In those very dangerous cases, above referred to, where a small part of a large property has been sold ofi, the vendor will on a subsequent sale probably be unable, even it willing, to answer the inquiries, but in these cases it will often happen that the truth will appear on inquiries made in the neighbourhood.

(5) There remains to be considered the question upon what terms a willing purchaser may complete, without requiring the appointment of trustees of the compound settlement, or requiring the whole or part, as the case may be, of the purchase money to be paid into court under the Conveyancing Act, 1881, s. 5, for the purpose of satisfying pin money charged on the life estate of the vendor, or jointures or portions charged under the powers of the settlement. It must be remembered that the purchaser’s solicitor may, if the plan adopted fails to protect the purchaser, be liable to an action for negligence unless he explains the risk to his client and receives from him instructions to complete notwithstanding the risk, and retains evidence that this has been done. Probably the safest plan is for the solicitor to obtain from the client a letter in which the latter states in his own words what he understands the risk to be, and directs the solicitor to complete.


It must be remembered that any indemnity given by way of covenant only may in the event be insufficient, for although the covcnantee may at the time when he enters into the covenant be rich, his estate may be insolvent at the time when the covenant is broken, which will probably be after his death.

Assuming that the purchaser is willing to rely on the covenants by the vendor implied by his conveying as “beneficial owner," the usual proviso restricting his liability to the acts of himself and persons claiming under him should not be inserted, unless he is himself the settlor (see 1 K. & E. 411). If he is the settlor, the jointress and portioners are persons claiming under him, and, therefore, the covenant restricted by the proviso extends to their claims ; but if he is not the settlor, they do not claim under him, and the covenant restricted by the proviso does not extend to their claims, and will be useless.

Probably, notwithstanding the risks attending an indemnity given by way of covenant only, the plan of taking a conveyance from the vendor “ as beneficial owner ” without the proviso restricting his liability will often be adopted, but, for the reasons above stated, it is somewhat dangerous, especially if the purchaser intends to build on the land.

Where the vendor, or one of his predecessors in title, purchased for value from a tenant for life, and paid the purchasemoney to the trustees of the settlement, and it can be shewn that a compound settlement existed at the date of the sale, the only safe plan will be to reject the title.


Cases of more or less importance to suitors and the profession affecting the county courts have, during the legal year just expired, been determined in the Supreme Court. To these reference must, in accordance with an established custom of this journal, now be made. It will be found that the decisions comprised in this article are somewhat less numerous than usual. This, however, is clearly not attributable to any falling off in the business in the county courts, which is still maintained at a very high figure; but it is, we believe, due, in no small measure, to the more accurate knowledge now possessed by the profession and suitors of county court jurisdiction and practice, by reason of which fewer mistakes are now made than heretofore in the conduct of litigation in the county courts. Such a degree of practical knowledge as now obtains amongst the profession and public on these subjects is, after all, but the necessary outcome of a wider experience derived from constant recourse to these inferior tribunals which are so rapidly developing into courts of first instance, not merely for small debt cases, but for causes fit for trial in the High Court itself.

The powers aruljurz'ad2'ct1'on of the county courts have occasioned several decisions to which it is desirable, in the first instance, to call attention. In Reg. v. Turner (45 W. R. 316; 1897, 1 Q. B. 445) it was held that, under section 74 of the County Courts Act, 1888 (51 & 52 Vict. c. 43)—whereby an action may be commenced, by leave of the judge, against a defendant resident out of the district, if the cause of action arose wholly or in part witlur the district—the judge is not bound, having satisfied himself as to the bare facts, to allow a summons to be issued. On the contrary, the judge has discretion to refuse leave, though he be satisfied that the cause of action was such as to give him power to grant the summons if he had thought fit to do so. Moreover, as was pointed out by WRIGHT, .T., in the case under consideration, the judge is expressly oblig/erl by the County Court Rules, 1889, to exercise a discretion in each case, it being provided by ord. 5, r. 9a, that “the judge or registrar shall duly consider the facts disclosed by the aflidavit and exercise his discretion in each case as to the grant or refusal of leave, in accordance with the circumstances.” That the language of the enactment above referred to, under which the jurisdiction is exercised, is permissive seems clear from previous cases where it was held that similar words had not necessarily a compulsory force, but were quite susceptible of a discretionary sense: see Julius v. 17w Biabop of Oxford (28 W. R. 726, 5 App. Cas. 214) gridsltgg. v. T/w York and North Midland Railway Co. (1 El. &

. 5 ).


In TVao(l v. .Mz'dolloton (45 W. R. 184 ; 1897, 1 Ch. 151) the power of a county court to order service of process out of the jurisdiction was involved. There the plaintiff claimed a legacy of £100 from the defendant, who was trustee of a will. The defendant was described as resident in Scotland, and consequently out of the jurisdiction of an English county court. Ultimately, on its being discovered that the testator’s estate exceeded £500 ( the pecuniary limit, in equity cases, of county court jurisdiction), the county court judge made an order transferring the action to the High Court. Before, however, the making of this order, the registrar of the county court, on the strength of an affidavit deposing to the fact of the defendant’s residence in Scotland, gave leave to serve the defendant there, which was accordingly done. It was held that such service was authorized by ord. 51, r. 23, of the County Court Rules, 1889, and that, though such rule was wider than the corresponding High Court rule, it was, nevertheless, a rule which might lawfully be made by the proper authorities under section 164 of the County Courts Act, 1888, and that therefore no objection to the jurisdiction could be raised in the county court, but that, on the transfer of the action to the High Court, the defendant was not debarred from urging the same objection there. '

One case, affecting the admiralty jurisdiction of the county courts, must next be referred to—namely, Wells v. T/no Owners of tho Gas Float “ Wh1'tt0n,” N0. 2 (1897, A. C. 337). There the plaintiff claimed a salvage award in a county court having admiralty jurisdiction for services rendered to a gas float adrift in the tidal waters of the Upper Humber. The structure was of iron, boat-shaped, and contained gas which supplied the light raised above it. It was held by the House of Lords, affirming the decision of the Court of Appeal (44 W. R. 263), that the gas float was not a “ ship ” or a “ wreck” within the meaning of sections 2 and 458 of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), and could not, therefore, be the subject of salvage. In this connection it should be mentioned that the subjects or objects in respect of the saving of which the High Court of Admiralty has jurisdiction by the common law are confined to a ship, her apparel, her cargo (including flotsam, jetsam, and lagan, or the wreck of them), and to freight in danger and saved by reason of the saving of the ship or cargo ; and that the subjects or objects of salvage are not enlarged by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), or by any of the preceding statutes, or by the County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71), with the sole exception that the saving of lives of persons in danger from being on board ship, have been added to the list of such sub jects or objects.

A case affecting the jurisdiction of the county courts under the Rivers Pollution Prevention Act, 1876 (39 & 40 Vict. c. 75) next demands notice—namely, River Ribble, Joint Committee of v. Croaton Urban District Council (45 W. R. 348; 1897, 1 Q. B. 251). There, in 1893, an order was made in a county court, under the Rivers Pollution Act, 1876 (39 & 40 Vict. c. 75), by consent between the plaintiffs and the defendants, restraining the latter from permitting sewage to flow into a river, and ordering the defendants to construct certain sewage works. In 1896 the defendants, not having complied with this order, proceedings were taken for the recovery of penalties. The defendants desired to shew that the river in question was a tidal river, and that therefore there was no jurisdiction to make the order. It was, however, held that, the order having been made by consent, and being good on the face of it, the defendants were not entitled to shew, in answer to the claim for penalties, that the river was one as to which a valid restraining order could not be made, and that, if there was any mistake, proceedings should be taken to set the order aside.

Before quitting the cases now under consideration, it may be as well to refer to a decision afiecting the jurisdiction of a county court over an action brought under section 11 of the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), for the recovery of costs and expenses incurred in respect of a nuisance order. In Harnrnersrrritlt Viwstry v. Lowonfold (45 W. R. 60) it was held that such an action is subject to the limitation of time imposed by section ll of the Summary Jurisdiction Act, 1848 (11 8: 12 Vict. c. 43), in respect of making complaints and laying

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