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to Vol. II. is capable of improvement. In its present condition it too closely approximates to a table of contents, a fault from which,
CORRESPONDENCE, however, the index to Vol. I. is free.
THE LAND TRANSFER ACT, 1897.
[To the Editor of the Solicitors' Journal.] THE YEARLY COUNTY COURT PRACTICE, 1898. FOUNDED ON Sir,-I find that many people are under the impression that the “ ARCHBOLD'S COUNTY COURT PRACTICE” “PITT-LEWIS's London County Council can, at the special meeting to be held on the COUNTY COURT PRACTICE.” By G. PITT-LEWIS, Q.C., and C. 15th inst., limit the area in the connty and period of time for the ARNOLD WHITE, Barrister-at-law. THE CHAPTER ON CostS AND trial of the experiment of compulsory registration of title. Will you THE PRECEDENTS OF Costs, by Mr. MORTEN TURNER, Registrar kindly allow me to point out that the council has no such authority, of the Watford County Court. Two VOLUMES. Butterworth & and consequently if the Act is not vetoel on the 15th inst. the right Co. ; Shaw & Sons.
of the council to in any way control the operation of the Act will be This, like other annual practices, does not call for detailed absolutely at an end. In that case the Act will remain in force in notice, the interval of time elapsing between the appearance of the county of London for all time or until it is repealed by another
J. S. RUBINSTEIN. each new edition being so short. The work before us, which has Act of Parliament. been carefully edited, now comprises all decisions and enactments
5, Raymond-buildings, Gray's-inn, Feb. 9. affecting the county courts which have accumulated during the past twelve months, and likewise presents certain new features. Vol. I., which, it will be remembered, is devoted to general county court jurisdiction and jurisdiction in admiralty, is now divided into three
[To the Editor of the Solicitors' Journal.] books, instead of two, the additional book (III.) being devoted to the Sir,- In your editorial comments in your last week's issue on the important subject of costs, and consisting of two chapters on Costs action of the Council of the Incorporated Law Society with regard to and Precedents of Costs, contributed by Mr. Morten Turner, the proposed application of the Act to London, you incline to the Registrar of the Watford County Court, and one chapter (3) on view that they were bound to reply to the London County Council's Scales of Costs and Court Fees, which two branches of the subject of circular in the terms they did because the London solicitors have no costs were, in the 1897 edition of the present work, dealt with in the representative body save the Incorporated Law Society, and thereappendix. At p. xxv. of the same volume will be found, prefixed fore, if the Council of that society had not replied, these solicitors to the County Courts Act, 1888, & useful Time and Practice Table, would not have been able to voice their feelings in the matter. But compiled by Mr. J. Errington, Registrar of the Carlisle County if they claim that that Council is primarily their representative Court, and, under the heading “ Administration Orders," section 22 they stultify themselves by objecting to a trial in their midst of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), and the rules and of the Act which (through their same Council) they agreed to support forms thereunder are now fully dealt with at the end of chapter 2 and did support. The Yorkshire societies repudiated that action of the of Book II., at p. 349, et seq., instead of being, as in the previous parent society before the Bill became an Act, and the London soliciedition, incidentally and briefly referred to in an earlier page of the tors might have found the means to do the like and so placed themwork. In Vol. II., which, it should be mentioned, comprises the selves in a position to object to the first trial being made in London. law and practice of the county courts under special statutes, various But they did not. If the Council of the Incorporated Law Society alterations and additions of minor importance will be noticed. Thus, had refused to approve or support the Bill, whether actively opposing reference is now, for the first time, made in this volume to the it or not, they would have been free to reply to the circular by proHousing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70), to testing against a compulsory trial anywhere, but not even then to the Preferential Payments in Bankruptcy Amendment Act, 1897 (60 pick out London as the one favoured spot to be saved from it. & 61 Vict. c. 19), to the Merchant Shipping Act, 1897 (60 & 61 Vict. The proposition that because the London solicitors have no other C. 59), and to the Workmen's Compensation Act, 1897 (60 & 61 Vict. representative institution, therefore it must maintain their interests, c. 37), while the treatment of some of the various groups of statutes even though public interests happen to be antagonistic to the interests considered has been somewhat modified. To each volume a separate of the otber members, is untenable. It is something like a member of a and improved index is appended containing various fresh titles, for partnership firm taking the only horse of the firm (no matter how the most part occasioned by the new matter now for the first time much it may be required for their business) and using it in his introduced.
private conveyance for his private purposes, thereby, to some extent,
interfering with and injuring the partnership business. BOOKS RECEIVED.
For their own purposes the London solicitors should provide their
own horse as the provinces do by their local societies. You may say Prisoners on Oath : Present and Future. By Sir HERBERT that the London member pays a larger subscription than the proSTEPHEN, Bart., Barrister-at-Law. William Heinemann.
vincial member. And so he ought. It requires no ingenuity to The Law Magazine and Review: A Quarterly Review of Juris- prove that he gets twice the benefits, even though the contention of prudence and Quarterly Digest of all reported Cases, being the com- the Yorkshire societies as to this particular matter holds good. The bined Law Magazine, founded in 1828, and Law Review, founded in provincial men subscribe to their own local societies in addition to 1844. February, 1898. Stevens & Haynes.
the parent society. The Law relating to Markets and Fairs, and therein of Auction society " for hindering it (the Act) from Coming into operation."
Moreover, the Yorkshire societies have not censured the parent Marts, Sale Rooms, Hawkers, and Pedlers. By L. GACHES, Barrister- On the contrary, they fear that by their action the council may have at-Law. Eyre & Spottiswoode. Price 28. 6d.
done the reverse. These points appear to me to have been fairly put The Annual Digest of all the Reported Decisions of the Superior by Mr. Middleton, but it is probable that more people will read your Courts, including a Selection from the Irish. With a Collection of comments than will read the report itself, therefore I solicit the Cases Followed, Distinguished, Explained, Commented on, Over- favour of the publication of this criticism in your next issue. ruled, or Questioned; and References to the Statutes passed during 5, Leopold-street, Sheffield, Feb. 9.
GEO. E. WEBSTER. the Year 1897. By JOHN MEWS, Barrister-at-Law. Sweet & Maxwell (Limited); Stevens & Sons (Limited). Price 158.
[We attempted to shew that the interest of the London members was really not antagonistic to that of the Yorkshire members, but our correspondent makes no reference to this.-ED. S.J.]
The Canada Law Journal says that of all the amusing deliverances we have met with on the part of reporters in ancient or modern times, we
JUDGMENT IN DEFAULT OF DEFENCE. unhecitatingly pronounce the gaucherie of the reporters of the Supreme Court of Georgia to be paramount. In reporting the case of The Western
[To the Editor of the Solicitors' Journal.] and Ailantic Railway Co. v. Jones, at the place where English and Canadian reporters are wont to put their head-lines, we find the following legend: upon order 14 and the sammons for directions, I notice that upon
Sir,-Upon the perusal of the article in your iseue of this date "Jackson, Chief Justice, was providentially prevented from presiding in this the first point dealt with by the writer of the article (a point which
The interesting lecture lately delivered by Mr. Pitt-Lewis, Q.C., in the the plaintiff may proceed to enter judgment without order. I should
to me to be in direct conflict with the notes in the Annual Practice of graduate of Yale University, America. This gentleman is a direct 1898, to ord. 27, r. 1, p. 551, last par., and ord. 27, r. 2, p. 554. descendant of John Phelps, who was called to the Bar at the Middle It appears to me that the construction of ord. 30, r. 1, is ambiguTemple in 1650, and was clerk of the court which tried King Charles I. It may be read either “ before the plaintiff' takes any fresh The proceeds of the sale of the lecture will be given to the Barristers step other than to enter judgment in default of defence," Benevolent Associatioŋ.
or as follows ; " before the plaintiff takes any fresh step other than
to enter judgment,” &c., and that the latter is the view adopted by the editors of the Annual Practice.
CASES OF THE WEEK.
Court of Appeal.
RAILWAY-OBSTRUCTION OF ROAD-PENALTY FOR NOT MAKING SUBSTITUTED
ROAD-BY WHOM RECOVERABLE-ROAD BELONGING TO ADJOINING LAND[To the Editor of the Solicitors' Journal.]
OWNERS—RAILWAYS CLAUSES Act, 1845 (8 & 9 VICT. C. 20), ss. 53, 54. Sir.-In reply to the letter in your issue of 5th inst. signed
Appeal by the defendants from the judgment of Wright, J., at the "H.," the Act does provide for the payment of" further duty in case trial of the action without a jury (1897, 2 Q. B. 239). The action was of undervaluation": see section 8 (7), and see also section 11 (?), from brought under section 54 of the Railways Clauses Act, 1845, to recover which it may be inferred that the period during which the value of a £1,700 as penalties for eighty-five days' default on the part of the defend. property may be adjusted is two years from the death, but that at ants in providing a road in substitution for another road which they had the end of such period, and on a certificate discharging both the temporarily obstructed. The plaintiff was the owner of land bounded on property and the person accountable being given, the matter is one side by a private road, which was used by the owners of the land adfinally closed, subject only to the question of fraud raised by section joining it, the plaintiff being, therefore, the owner of one-half of the road, 11 (3).
usque ad medium filum. The defendants were, by a special Act incorporating Rectification would be necessary in case, by reason of the discovery the road at a point adjoining the plaintif's land, and in constructing the
the Railways Clauses Act, 1845, authorized to construct a railway crossing of additional effects, the rate of duty already paid were increased, or railway they temporarily cut through and interfered with the road, with: on a return of duty being claimed and allowed.
B. Feb. 8.
out providing a substituted road as required by section 53 of the Railways Clauses Act, 1845. The defendants contended that the plaintiff, being only owner of one-half of the road, was not "the owner of the road within section 54 of the Railways Clauses Act, 1845, and could not there
fore sue for the penalties. Wright, J., gave judgment for the plaintiff. NEW ORDERS, &c.
By section 53, if it be necessary to cross or cut through any part of any THE COLONIAL PROBATES ACT, 1892.
road, either public or private, so as to render it impassable for or
dangerous or extraordinarily inconvenient to persons entitled to the use ORDER IN COUNCIL,
thereof, the company shall, before commencing such operations, cause a Whereas by the first section of “The Colonial Probates Act, 1892,” suficient road to be made instead of the road to be interfered with. By it is enacted as follows :-"Her Majesty the Queen may, on being section 54, "if the company do not cause another sufficient road to be satisfied that the Legislature of any British possession has made made before they interfere with any such existing road as aforesaid, they adequate provision for the recognition in that possession of Probates not be made after the existing road shall have been interrupted, and such
shall forfeit £20 for every day during which such substituted road shall and Letters of Administration granted by the Courts of the United penalty shall be paid to the trustees, commissioners, surveyor, or other Kingdom, direct by Order in Council that this Act shall, subject to person having the management of such road, if a public road, and shall be any exceptions and modifications specified in the Order, apply to that applied for the purposes thereof, or, in case of a private road, the same possession, and thereupon, while the Order is in force, this Act shall shall be paid to the owner thereof, and every such penalty shall be reapply accordingly.” And whereas Her Majesty is satisfied that the coverable with costs by action in any of the superior courts.". Legislature of the British possession hereinafter mentioned has made THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.), having taken adequate provision for the recognition in that possession of Probates time to consider, dismissed the appeal. and Letters of Administration granted by the Courts of the United
CHITTY, L.J., read the judgment of the court, in the course of which he Kingdom. Now, therefore, Her Majesty, by virtue and in exercise said that the defendants' contention--namely, that the owner" meant of the powers by the above-recited Act in Her Majesty yested, is of the Legislature in many cases, because the owner of one half had no
all the owners of the road-would operate to defeat the obvious intention pleased by and with the advice of Her Most Honourable Privy means of compelling the owner of the other half to join in suing. In Council to order, and it is hereby ordered as follows:
their opinion the $20 a day was a penalty, and not a sum given as com. "The Colonial Probates Act, 1892,” shall apply to the British pensation for the wrong done. One penalty only was inflicted for each possession hereunder mentioned :-
day during which default existed, and that penalty was not apportionable, The Island of Grenada.
but was one entire sum of £20. In their opinion the owner of the soil of And the Right Honourable Joseph Chamberlain, one of Her part of that portion of the road interfered with could sustain an action for Majesty's Principal Secretaries of state, is to give the necessary the penalty, and the first of such owners who sued and brought his action directions herein accordingly.
C. L. PEEL.
to trial could recover.-Counsel, C. A. Russell, Q.C., and Ě. F. Buckley ; Feb. 3, 1898.
Cripps, Q C., and Kenyon Parker. SOLICITORS, Soames, Edwards, f Jones,
[Reported by W. F. BARRY, Barrister-at-Law.]
HALL v. LAUNSPACH. No, I. 7th Feb. Thursday, the 3rd day of February, 1898. I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Mayor's Court-Costs—Action or LIBELLR88 THAN £5 Recovered Great Britain, Do hereby Order that the Actions mentioned in the
JURISDICTION TO ALLOW Costs -PROHIBITION—MAYOR'S COURT OF LONDON Schedule hereto shall be transferred to the Honourable Mr. Justice
PROCEDURE Act, 1857 (20 & 21 VICT. C. CLVII.), s. 11-Mayor's COURT Wright.
Rules, 1890, r. 1; SCHEDULE B-Mayor's Court Rules, 1892, ORD. 8,
Appeal from an order of Ridley, J., at chambers, prohibiting the
Mayor's Court, London, from taxing the plaintiff's costs, except in respect In the Matter of The Kensington Co-operative Stores (Limited).
of court fees and allowances to witnesses, in an action of libel tried with Sir Francis Leopold McClintock and others v. The Kensington Co-opera- a jury, in which the plaintiff recovered a verdict for £2 10s. (reported tive Stores (Limited).
ante, p. 163). The judge in the Mayor's Court entered judgment for the
plaintiff for £2 103., and gave no certificate for costs, except that he Mr. Justice Stirling (1897—U.-No. 897).
certified for counsel. The judgment was entered for the damages and In the Matter of The United Empire Trading Co. (Limited).
costs. The registrar taxed the plaintiff's costs on the scale applicable to Emma Phillp v. The United Empire Trading Co. (Limited).
cases where less than £20 was recovered, and the judge of the Mayor's
Court dismissed an application to review the taxation. The defendant Mr. Justice Romer (1898-A.-No. 104).
contended that there was no scale of costs in the Mayor's Court applicable In the Matter of The Andrews Hawksley Patent Tread Co. (Limited).
where £5 or under was recovered, and that therefore the Mayor's Court Harry Hooper v. The Andrews Hawksley Patent Tread Co. (Limited).
had no jurisdiction to allow the plaintiff's costs, except those relating to
court fees and allowances to witnesses. The plaintiff contended that, HALSBURY, C. under ord. 8, r. 1, of the Mayor's Court Rules, 1892, the costs followed
the event, and that the registrar had jurisdiction to allow the costs.
Ridley, J., having granted a writ of prohibition, the plaintiff appealed. M. Labori, M. Zola's counsel, says the St. James's Gazette, is one of the
THE COURT (CHITTY and COLLINS, L.JJ.), having taken time to consider, youngest and most brilliant of French advocates, and is thirty-eight years allowed the appeal. of age. With his fair complexion and beard and his tall slim figure, he is CHITTY, L.J., said that the defendant had not shewn that the Mayor's a true type of the Gaul. This is not the first time that he has figured in Court had not an ancient jurisdiction to give costs. It was admitted that the front rank in judicial annals. In 1894 he pleaded for Vaillant, the it was the practice of the court to give costs, and, in the absence of any. Anarchist, who threw a bomb in the Chamber of Deputies, and, while he thing to the contrary, the presumption arising from the practice would be condemned anarchy, his admirable address made a profound impression in favour of the jurisdiction. That presumption was supported by section on the jury.
11 of the Mayor's Court Procedure Act, 1857. The question, therefore,
was whether that jurisdiction had been taken away. It was plain that a settlement gained by birth is a settlement in the particular parish, and none of the scales of costs (exclusive of court fees) under the Mayor's when the parish is sub-divided all the old parish goes and the settlement Court Rules, 1890, were applicable to cases where the amount recovered goes with it. A pauper not settled in the part in which he was born. was £5 or under. Thero was, therefore, no scale of costs applicable to the if the Legislature mean to enact that they must say so, and there is present case. There was, however, no rule to the effect that no costs nothing in the Local Government Act, 1894, which does say so. We should be allowed other than those for which scales were prescribed. must bear in mind that the Legislature, in passing that Act, knew how Rule 1. of the Rules of 1890, which provided that all costs should be taxed the law stood at the time, and one is struck by the fact that no section according to the scales of costs set out in the schedules, was, in his was put in to enact that a person who was deemed by law to have a opinion, confined to cases where the scales applied, and where the scales settlement in the old parish should be deemed to have a settlement in the did not apply the taxation was left upfettered. The proviso in ord. 8, r. new parish. I can get nothing out of the Act to say so. The decision of 1, of the Rules of 1892, that, where the action was tried with a jury, " the the court below is therefore right and the appeal must be dismissed with costs” should follow the event, unless the judge for good cause otherwise costs. ordered, meant costs according to the scales where they applied. Section RIGBY and VAUGHAN WILLIAMS, L.JJ., delivered judgment to the same 11 of the Act of 1857 shewed that, where it was intended to take away effect. —COUNSEL, Macmorran. Q.O., and G. Elliott , Bosanquet, Q.O., and a jurisdiction as to costs, plain and direct words were used. There were W. F. Barry. SOLICITORS, Howard C. Jones ; Geo. Scale, Dorking. no such words in the rules of 1890 or 1892. It was difficult to suppose
[Reported by J. I. STIRLING, Barrister-at-Law.] that the Mayor's Court in framing the rules, or the Rule Committee in fanctioning them, intended to take away the jurisdiction by inference, and it was on inference only that the defendant's argument on the effect of the rules was founded. The argument could not be sustained. It
High Court-Chancery Division. would seem advisable that the rules should be amended by providing a scale of costs to cover cases like the present.
Re DE NICOLS, DE NICOLS v. CURLIER. Kekewich, J. 3rd Feb. COLLINS, LJ., delivered judgment to the fame effect.- COUNSEL, H. HUSBAND AND WIFE - MATRIMONIAL DOMICIL - CHANGE OF DOMICILReed, Q.C., and M. R. Emanuel ; S Lynch. Solicitors, Emanuel, Round,
FOREIGN Law. & Nathan; Swepstone & Stone.
In 1854 Mr. de Nicols, a domiciled Frenchman, married his cousin, a [Reported by W. F. RARRY, Barrister-at-Law.]
domiciled French woman, in Paris. No contract or settlement was
executed by the parties on their marriage, in which case, according to the GUARDIANS OF DORKING UNION ». GUARDIANS OF ST. SAVIOUR'S French law of " community of goods, each party was entitled to oneUNION, No. 2. 7th Feb.
balf of the property acquired during the coverture by either or both of Poor LAW_SETTLEMENT-DIVIDED PARISH- Local GovelNMENT Act, 1894 in that year came over to England with his wife. In 1865 they became
them. In 1863 Mr. de Nicols was adjudicated a bankrupt in France, and (56 & 57 VICT. c. 73), ss. 1 (3), 67, 68.
naturalized British subjects. In 1897 Mr. de Nicols died, and by his will, This was an appeal by the guardians of St. Saviour's Union from a decision made according to English forn, he gave his residuary real and of the Divisional Court-Collins, L.J. (then Mr. Justice), and Ridley, J. (re- personal estate, consisting of property acquired in England, upon trust ported 41 SOLICITORS' JOURNAL 697). A special case was stated by quarter for his wife for life, and upon her death for his daughter, her husband sessions of the county of London for the opinion of the Divisional Court and children. This was a summons taken out by Mr. de Nicols' widow raising a question as to the result for purposes of pauper settlement law claiming to be entitled to one-half of all the property in the possession of of the division of a parish under the Local Government Act, 1894. The her husband or of him and herself jointly at his death, notwithstanding case was stated on an appeal from the order of justices. It appeared the will. Mrs. de Nicole' claim depended upon whether the change of therefrom that A. E. Budger, & pauper, was born on the 26th of Decem- domicil of the parties altered their rights with respect to their property ber, 1879, at Westcott, a bamlet then forming part of the parish of acquired during coverture conferred by the French law, the law of their Dorking, iu the Dorking Union, in the county of Surrey. He never matrimonial domicil. The question was only argued with respect to acquired a settlement elsewhere. In August, 1896, he became chargeable “moveable goods." to the St. Saviour's Union, in the county of London, which, on the 18th KEKEWICH, J.-The only questiou which I am now called upon to of August, obtained an order for his removal to the Dorking Union. It decide is whether the property conveniently described as " moveable was against this order that the appeal was brought. At the time of the goods," an expression not so familiar to the English law as to writers of passing of the Local Government Act, 1894, the parish of Dorking was books on international law, of which the testator was at the date of bis situate partly within and partly without the Dorking rural sanitary death in ostensible possession, really belonged to him wholly, or whether district, and had overseers who levied a rate for the entire parish. By his widow is entitled to some interest in it by virtue of French law the operation of eection 1 (3) of the Local Government Act, 1894, the applicable to his property at the date of the marriage and continuing part of the parish which was within the said rural capitary district and during the remainder of the joint lives of the spouses. It is admitted on the part wbich was not became two separate parishes, and the old parish both sides that there is no decision on the question; by that is meant no ceased to exist. The names of the new parishes, by order of the county decision of a court of competent jurisdiction in England, by which this council, became “Dorking” and “ Dorking Rural” respectively. They court is bound. There is an Irish case, Re Letts' Trusts (7 Ir. L. R. Ch. each had separate eets of overeeers and rates. Westcott, where the 132), and there are American cases, which, although worthy of respect, pauper was born, is situate in Dorking Rural. It was contended by the are not binding on an English court. There are dicta by some judges and guardians of Dorking Union: (1)_That, as the hamlet of Westcott was there is one by Lord Eldon in Lashley v. Hogg (1 Burge. Col. & For. Law, within the parish of Dorking Rural and not the parish of Dorking, part 1, c. 7, s. 8, p. 623), but it does not appear to me that his meaning the order of the justices was bad, inasmuch as the pauper, if is clear, and I do not think it touches this point. There are plenty of settled at all in any parish of Dorking Union, was settled in the parish of dicta in the text-books, some of which appear to be in favour of the Dorking Rural, not in Dorking; that, there being no evidence before the plaintiff, and so far as there is any consensus of opinion, it is not too justices who made the order that the old parish of Dorking had been much to say that it is not adverse to the plaintiff's claim. The result is divided as aforesaid and that the new parish of Dorking Rural had been that I must decide this case upon principle, and I must follow that principle formed and was in existence, the said order could not be amended by the straight through to its conclusion. The question, then, is, what is the insertion of the word “rural.” (2) That in consequence of the division principle by which I am to guide my decision. I think it is this: These of the old parish it had ceased to exist, and the pauper had lost his birth spouses were French people and they intermarried in France. It was settlement in the old parish, and that, as there was not at the time of his open to them to marry according to one or more regulations affecting birth any parish of Dorking Rural, he could not have any settlement in matrimonial property. It is immaterial to consider their limit of choice, that parish now, not having acquired one since its formation. but they had some in the matter. In the absence of any express election The court of quarter sessions held that they could amend the order to the contrary, their rights were to be regulated by the law of " by adding the word “rural.” As to the second contention, that munity of goods," and, so far as we know, they married according to the court held, upon the authority of Reg. v. Hunnington (5 Q. B. 279), French law so as to settle their property which they then had and which Stourbridge v. Droitwich Union (L. R. 6 Q. B. 769, 19 W. R. Č. L. Dig. 58), they might subsequently acquire during coverture according to the law of Reg. v. Tipton (3 Q. B. 215), Reg. v. St. Martin's-new-Sarum (9 Q. B. 241), community of goods. In my opinion that was a contract entered into by that the pauper bad no settlement in Dorking Rural, and could not be them, a contract which this court does not regard as the less effectual to removed to the Dorking Union in virtue of his birth settlement in the old include after-acquired property because it was not at the time so expressed parish of Dorking, that parish, for the purposes of settlement, having been and was not then in their contemplation. Why should I infer an altera. destroyed and the pauper's settlement gained in it by birth wholly lost. tion of that contract; it might be possible—I do not inquire into that,for On the special case stated by the court of quarter sessions the Divisional them to alter it in France, but why should I infer an alteration was Court decided that the principle of the authorities above cited was that intended by them at the moment of their change of domicil, or at any when the parish in which a pauper was born was divided, the entity other time, and only solely with respect to after-acquired property? maintaining its own poor in which the pauper had acquired his settlement There is no reason to infer that the contract, if I am right in thinking it no longer existed, that whether those cases were rightly decided or not a contract, did not include after-acquired property as well as they had been law for so long it would be quite impossible for the court property existing at the date of the marriage. That seems to not to follow them; and that, as, therefore, the place to which the pauper me the principle I ought to apply. No doubt we must look to the in the present case ought to be sent no longer existed, he must remain English domicil to ascertain the rights of the parties among themselves chargeable to the union where he was-viz., St. Saviour's. From that that is, the husband, wife, and child under the will, but we must look decision the guardians of St. Saviour's Union now appealed.
back to the matrimonial domicil to see what the husband's proprietary THE COURT (LINDLEY, M.R., and Rigby and VAUGHAN WILLIAMS, L.JJ.) rights are. We must not apply the doctrine of domicil to the moment of dismissed the appeal.
death only by looking at the then domicil of the husband. It is a fallacy LINDLEY, M.R.-I do not see how we can differ from the Divisional to say that his domicil at death governs rights of his which do not Court. Al that I can say is that Reg. v. Tipton and these other cases put exist. He does not affect to dispose of property by his will which is not a narrow construction on the Act of 14 Chas: 2, c. 12. But it is clear that his. To ascertain what was his property and what was not we must look
baek and see what was the law, governing his proprietary rights, and those I think the case made upon the motion is fully proved, and I think also it rights, I think, were fixed at the time of his marriage and are governed by has been clearly shewn that the same defendants illegally watched and the French law of community of goods both with respect to the present and beset the premises of Schoenthal for the purpose of preventing him from after-acquired goods. There is nothing to alter that contract, and there working for the plaintiffs, but I think it probable that the Court of is nothing that requires me to say that by a change of domicil there was Appeal would have framed the second part of the injunction granted in a any surrender by the wife of her rights under the matrimonial contract different manner had the case of Allen v. Flood been then decided by the I must therefore hold that the husband by bis will disposed only of such House of Lords. At any rate, the point has not been specifically argued property as was properly his, and that it did not include what was his whether or not, apart from the question of malice, it was unlawful to call wife's property under the matrimonial contract, and declare that the wife's out the workmen of Schoenthal in order to prevent him from working for right under the French law to & moiety of the moveable property acquired the plaintiffs. Had the matter been one of iinportance in the present case, during, the coverture by the husband and wife remains unaffected by I should probably have required further argument, but the strike is long the will.-Counsel, Renshaw, Q.C., and Ingle Joyce ; Warrington, Q.c., since over, and I have assumed that the parties would prefer not being put Elgood, and Maugham; 4. V. Dicey, Q.C., and Whinney. SOLICITORS, to the trouble and expense of re-argument upon this point. I propose, Hicks, Arnold, g Mozley ; Tyrrell Leuis ; Lewis & Broadbent.
therefore, to grant a perpetual injunction following the terms of the first [Reported by C. C. Hensley, Barrister-at-Law.]
part of the order of the Court of Appeal, but to frame the latter part of
the injunction as follows : “And also from watching or besetting the BAXTER • MIDDLETON (Re MIDDLETON AND BAXTER AND THE premises of Adolph Schoenthal for the purpose of persuadiag or
VENDOR AND PURCHASER ACT, 1874). Kekewich, J. 8th Feb. otherwise preventing him from working for the plaintiffs, or " Lis Pendens ” — Action For Specific PERFORMANCE D18MISSED — ORDER tion.” The injunction must extend to the defendant Thompson, who
for any purpose except merely to obtain or communicate informaVACATING REGISTRATION –30 & 31 Vict. c. 47, s. 2.
participated in the wrongful acts committed. The acts in question being This was an action by a purchaser to enforce against the vendors unlawful, the other defendants, if they conspired to induce the commisspecific performance of a contract for the sale of a business together with sion of such acts, are equally liable to an injunction, and by their the business premises and goodwill. Subsequently to the issue of the writ amended defence all the defendants make common cause and accept the defendants, the vendors, took out an originating summons under the common responsibility in respect of the matters I bave referred to, as well Vendor and Purcbaser Act, 1874, to bave it declared that the contract was as in respect of the alleged libels, wbich still remain to be dealt with. not binding on them. Immediately after the issue of the writ the plain- | Ard, indeed, it is difficult to see how, as officers of the society under an tiff registered the action as a lis pendens. Upon the action and summons obligation to attend all meetings of the executive council, under whose coming on by order for trial and hearing together, the action was dis- directions the defendant Wilkins acted, and with power to express their missed with costs, and on the summons no order for costs or otherwise opinions, they could well do otherwise, whatever the domestic constituwas made.
The plaintiff at once gave notice of his intention to appeal, tion of the society to which they belong may provide as to their voting but, notwithstanding this, counsel for the defendants asked for an order powers. The plaintiffs further aek for an injunction to restrain the vacating the registration of the lis pendens under the power given to the defendants from maliciously inducing or conspiring to induce persons not court by section 2 of 30 & 31 Vict. c. 47, and referred to Pooley v. Bosanquet to enter into contracts with the plaintiffe, and I postponed judgment at (7 Ch. D. 541).
the request of both parties until after the decision of the House of Lords KBKBWICH, J., after referriug to the case of Strousberg v. M'Gregor (34 in Allen v. Flood should have been given. The effect of that decision is, SOLICITORS' JOURNAL 180), made an order to the effect that, if by that day in my opinion, to shew that the plaintiffs are not entitled to this injuncfortnight the appeal was not set down, the registration should be vacated. tion. It was conceded by the plaintiffs that they could not succeed unless -COUNSEL, Renshaw, Q.O., and Martelli ; Warrington, Q.C., and Ingle they could shew malice; and it is the law, as finally determined by the Joyce. SOLICITORS, Poole f Robinson ; Donald MacMillan.
House of Lords, that the existence of a malicious motive cannot in such a (Reported by R. J. A. MORRISON, Barrister-at-Law.]
case as this render unlawful an act or acts otherwise lawful. Another
injunction was asked for by an amendment made by leave at the trial J. LYONS & SON8 v. WILKINS AND OTHERS. Byrne, J. 3rd Feb. against the defendants Thompson, Laverick, and Goodall, as trustees of the
society, from applying the funds of the society in furtherance of the CONSPIRACY AND PROTECTION 10 PROPERTY Act, 1875 (38 & 39 Vict. C.
wrougful acts complained of. I am of opinion that there is no legal 86), s. 7 (4)-STRIKB-TRADES UNION" WATCHING AND BESETTING".
ground to justify such an injunction, and I refuee it and disallow the EMPLOYMENT OF UNION FUNDS--CONSPIRACY.
plaintiffs the costs of the amendment made in pursuance of such leave. Action. The plaintiffs are leather bag manufacturers at Red Cross. His lordship then held that the charge of libel was proved, and he street, London, E.C. The defendant Wilkins was the secretary, and awarded £5 as damages. -COUNSEL, Eve, Q.C., and Ward Coldridge ; Thompson, Laverick, and Goodall were the trustees of a trades union Jenkins, Q.C., and W. H. Cozens-Hardy. SOLICITORS, Shaen, Roscoe, & Co. called the Amalgamated Trade Society of Fancy Leather Workers, regis- Warburton g De Paula. tered under the Trades Union Act, 1871; while the defendant Clarke was
[Reported by NEVILLE TEBBUTT, Barrister-at-Law.) a member of the executive committee of the same society. In February, 1896, a dispute arose between the plaintiffs and their work people, and the union ordered a strike, and the premises of the plaintiffs were picketted. A strike was also ordered against a bagmaker named Schoenthal, who employed his own workpeople, but who was employed by the plaintiffs, for
Winding-up Cases. the purpose of compelling him to cease to work for them. The nature of Re LAND MORTGAGE BANK OF FLORIDA (LIM.). Wright, J. the relief asked for against the defendants will appear in the judgment.
3rd Feb. An interlocutory injunction was granted by Norto, J., and was affirmed by the Court of Appeal in March, 1896. A report of the case before the COMPANY-WINDING UP-SCHEME SANCTIONED BY THE COURT-MANAGEMENT Court of Appeal will be found 40 SOLICITORS' JOURNAL 372. The action
EXPENSES-UNDISTRIBUTED AssetS-JOINT-STOCK COMPANIES ARRANGEwas tried before Byrne, J., in November of last year, but judgment was
MBNT Act, 1870 (33 & 34 Vict. c. 104)--COMPANIES (WINDING-UP) Act, reserved until after the decision of the House of Lords in Allen v. F.ood.
1890 (53 & 54 Vict. c 63), s. 15 - COMPANIES WINDING-UP Rules, 1891, Originally the Amalgamated Society was made a defendant, but it was ordered to be struck out as incapable of being made a party. During the This was an application by the Board of Trade for an order on the trial leave was obtained to amend the pleadings by stating that Thomp: liquidators of the above company to pay into the Companies? Liquidation son, Laverick, and Goodall were sued in their representative capacity Account at the Bank of England certain surplus of calls which they held in order, if possible, to make the funds of the society liable to pay costs or in their hands. The company bad gone into voluntary liquidation in to prevent them being used for defending the action.
December, 1895. On the 15th of April, 1896, a scheme under tbe JointFeb. 3.—BYRNE, J.-In this case the plaintiffs have obtained an Stock Companies Arrangement Act, 1870, was presented to and sanctioned injunction until judgment to restrain the defendants, Wilkins and Clarke, by the court under which the uncalled capital was to be called up, and out of their servants and agents, from watching or besetting the plaiotiffs' it the debenture-holders were to be paid a dividend of 128. 6d. in the pound works for the purpose of persuading, or otherwise preventing, persons in September, 1897, and the balance in 1902. In the meantime the from working for them, or for any purpose, except merely to obtain or interest was to be kept down, and the liquidators were at their discretion communicate information ; and also from preventing Adolph Schoenthal or to apply any surplus from calls after the first dividend was paid for the other persons from working for the plaintiffs by withdrawing his or their payment of management and other expenses. They also had power under workmen or workwomen from their employment respectively. By a slip, the echeme to borrow money for protecting and developing the assets. the order as drawn up has been made more extensive, but the terms I have A trust deed embodying the scheme was afterwards executed. The mentioned are the true terms of the order pronounced by the Court of liquidators delivered statements of account to the Registrar of Joint-Stock Appeal, as appears by the judgment of Kay, L.J. (L. R. 1896 1 Ch. 811, Companies, as required by the Companies (Winding-up) Act, 1890, s. 832). The plaintiffs have at the trial in substance clearly proved the case 15. These statements ehewed that the liquidators had a surplus made upon the motion of watching and besetting the plaintiffs' premises of calls in their hands after paying. the first dividend. The illegally, and in my judgment they are entitled to have the injunction Board of Trade directed them to pay this surplus into the Companies' made perpetual eu far as the first part of the judgment is concerned, for L'quidation Account. The liquidators refused on the ground that this the reasons given by the Court of Appeal upon disposing of the motion; surplus was not “unclaimed of undistributed assets" within the meaning and I do not consider it necessary to add anythiug upon the law bearing of section 15 (3) of the Companies (Winding-up) Act, 1890. The Board upon this part of the case. I consider that it is clearly proved that the of Trade in consequence made this application. defendants Wilkins, Clarke, and Thompson watched and beeet the plain WRIGHT, J., held that the application failed. Under section 2 of tiffs' works or place of business, and the approaches thereto, for the pur- the Joint-Stock Companies Arrangement Act, 1870, & scheme, when pose of persuading or otherwise preventing persons from working for the sanctioned, became binding on the creditors concerned and also on plaintiffs, and for purposes other than those of merely obtaining or com the liquidator. This scheme provided that any surplus assets which municating information. In reference to the second part of the injunction might remain after paying the dividend on the debentures might be
applied before paying any further dividend in the payment of wages, without power of anticipation : see observations of Lord Hatherley in &c., or in "any expenditure which the company may think necessary Talbot v. Marshfield (3 Ch. App. 622). His lordsbip came to the conclusion or expedient for protecting and keeping up the company's property on the facts that, although the money was paid on the formal request of and assets, or of developing the same with a view to the realization of Mrs. Molyneux and her sister, it was perfectly well understood by the same." It was not contended that these sums were unclaimed assets, Fletcher that the money was to be used in the husband's business for the but it was said that they were undistributed assets under section 15 (3) of purpose of repaying his debt to Fletcher. That was not a proper or the Act of 1890. The answer to that was that under the scheme they justifiable exercise of the power of advancement: see Duke of Portland y. were not undistributed, but that some legal event had happened which Topham (11 H. L. C. 32); Humphrey v. Olver (28 L. J. Ch. 406), but his made them distributable in another way. The motion must be dismissed lordship added that he had no doubt Fletcher believed that whatever the with costs.-COUNSEL, Ingle Joyce ; Tindal Atkinson, Q.C., and H. s. husband did was done with the full consent of the two ladies. Fletcher Theobald. SOLICITORS, Solicitor to the Board of Trade; Johnson, Wetherall, would therefore be ordered to repay the $250 advanced to Mrs. Molyneux; $ Sturt, for Wade, Bilbrough, Booth, $ Co., Bradford.
but that order would be without prejudice to any proceedings which [Reported by C. W. MEAD, Barrister-at-Law.]
Fletcher might take against Mrs. Molyneux (who was not a party to this action), she being a tenant for life assenting to a breach of trust. With regard to the £500 advanced out of Miss Durant's share, no relief
could be given to the plaintiffs because their interest depended only on High Court-Queen's Bench Division. the possibility of Miss Durant dying unmarried, and without exercising
her power of appointment, or intestate, and the plaintiffs being her MOLYNEUX v. FLETCHER. Kennedy, J. 4th Feb.
next-of-kin : see Clowes v. Hilliard (4 Ch. D. 413), and Stockley v. Parsons WILL-ADVANCEMENT-PAYMENT OF DEBT OWING BY HUSBAND OF CESTUI (45 Ch. D. 51). The defendant Clark had taken no part in the breach of QUE TRUST TO TRUSTEE.
trust, but he had put in a defence to the action, siding with Fletcher and This action was tried before Kennedy, J. The plaintiffs were infants pleading that there had been no breach of trust. On that ground his suing by their next friend, and the defendants were trustees under the him. There would be a reference to the registrar for the appointment of
Iordship did not give Clark his costs, but he did not give costs against will of Edward Durant. The plaintiffs claimed (1) a declaration that the
new trustees.-COUNSEL, W. F. Taylor, Q.C., and MacConkey ; McCall, defendant Fletcher had been guilty of a breach of trust, and (2) the
Q.O., Rotch, and H. Cuningham; Pickford, Q.C., Segar, and Cleave. appointment of new trustees. The testator died on the 20th of April,
SOLICITORS, Horrocks f Christian-Jones, Liverpool; Masters & Rogers, 1878, leaving two daughters, infants, surviving him, both of whom were
Liverpool. still living. They were Fanny Jane, who came of age in 1880, and
(Reported by F. O. ROBINSON, Barrister-at-Law.] Amelia Margaretta, who came of age in 1881, and married in 1885 Daniel Webster Molyneux. The children of this marriage were the plaintiffs in Re THE MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRACTICES) this action. The testator, by his will, devised to the trustees thereby
ACT, 1884. Ex parte PENNINGTON. Div. Court. 8th Feb. appointed all his real and personal estate with certain directions as to realization and investment, and made his children beneficiaries under the MUNICIPAL CORPORATION-ELECTION OF COUNCILLORS-RETURN OF EXPENSES will. The will contained a direction to the trustees to apply in or towards
- LIABILITY TO MAKE RETURN, ALTHOUGH NO EXPENSES WERE ACTUALLY the maintenance and education or otherwise for the benefit of each child INCURRED-MUNICIPAL ELECTIONS (CORRUPT PRACTICES) Act, 1884 (47 & of the testator entitled under the trusts of the will to a share not 48 Vict. c. 70), s. 21, SUB-SECTIONS 4, 7. absolutely vested the annual income of such share. The will further
In this case counsel moved ex parte that Mr. John Down Pennington declared that it should be lawful for the trustees to apply in or towards might be relieved from the penalties imposed on him by sub-section 4 of the advancement in life of each child a sum not exceeding £500 of her section 21 of the Municipal Elections Act, 1884, for having inadvertentiy presumptive share, such sum or lesser sum to be paid if the trustees omitted to make return within the specified time of his election expenses. should think fit, notwithstanding that the child's share was settled as
The fact was that Mr. Pennington being the only candidate at the last thereafter mentioned, and the trustees were to be sole judges of the election of councillors for the Wellington Ward of the county borough of advisability of such payment and of what the term “advancement in Hanley, he had incurred no expense whatever, A short time back the life” might signify. Subject to that power the trustees were, after the
case of Ex parte Robson (18 Q. B. D. 336) was brought to his notice, in shares became vested by the children coming of age, to pay the income to
wbich a Divisional Court held that under precisely the same circumstances the two children in equal shares, and after their death upon trust for such of their children as they should appoint, and in default of appointment; In that instance the court granted the relief asked.
the candidate was liable unless a return was made as required by the Act.
Section 21, subupon the same trusts as those of the will, for the daughters' children. If section 4, of the Municipal Elections Act, 1884, directs that after the the daughters had no children their shares were to go as they might expiration of the time for making such return and declaration, the candi. dant Fletcher was appointed a trustee of the will by order of the court in date, after election, shall not, until he has made a return and declaration,
or until the date of the allowance of such authorized excuse as is men1887. The defendant Clark became a trustee after the events in respect
tioned in this Act, sit or vote in the council, and if he does so he shall of which the claim in this action was made had taken place. The
forfeit £50 for every day on which he so sits or votes to any person who plaintiffs alleged that in 1887 the defendant Fletcher and his then cotrustee committed a breach of trust in advancing out of the capital funds that if the candidate applies to the High Court and shews that the failure
sues for the penalty. By sub-section 7 of the same section it is provided £500 to Miss Durant and £250 to Mrs. Molyneux, under the circum to make such return and declaration has arisen by reason of inadvertence stances mentioned in the judgment. The action was tried without a jury at the last summer assizes at order and declaration as to the court seems just.
or on any reasonable cause of a like nature, the court may make such an Liverpool and adjourned to London for further argument. KENNEDY, J., after stating the facts and referring to the terms of the ought under the circumstances to be granted.---Counsel, A. J. Ram.
THE COURT (LAWRANCE and RIDLEY, JJ.) decided that the relief sought will as stated above, said that the plaintiffs' claim was put upon the SOLICITORS, H. G. Church, for Arthur Challinor, Hanley. ground that the moneys paid to Miss Durant and Mrs. Molyneux in 1887 by Fletcher were not paid with the single view of "advancement,” but with
[Reported by ERSKINE REID, Barrister-at-Law.] the view of the money being used for the benefit of Fletcher himself. Fletcher was a large creditor of Mrs. Molyneux's husband, and was Re THE MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRACpressing him for payment, and it was said that, though the money was TICES) ACT, 1884. Ex parte FRANCIS SMITH AND WARD. Div. nominally advanced under the power contained in the will, it was in Court. 8th Feb. reality advanced with the well-understood purpose that it should pass
MUNICIPAL CORPORATION-ELECTION OF COUNCILLORS-PRINTER'S NAME into the hands of Mr. Molyneux, to be used by him in reduction of his
OMITTED FROM CIRCULATED BILLS AND TICKETS_PENALTY–MUNICIPAL debt to Fletcher. In the first place his lordship thought it right to say
ELECTIONS (CORRUPT PRACTICES) Act, 1884, ss. 14, 21 (7). that upon the construction which he placed upon the will there was no power to make any advance at all at the time at which this advance was In this case counsel moved for relief under eection 21, sub-section 7, of made. It was clear on the authorities that where power was given to the Municipal Elections Act, 1884, from penalty incurred by Mr. Francis trustees to apply capital money for the advancement in life of a child, Smith, a candidate for the Northern Division of the Municipal Ward of that power was to be construed according to a well-understood meaning: Lambeth, and also on behalf of Mr. Ward, his printer. It appeared that Undoubtedly instances occurred in reported cases where it was intended certain posters had been issued with the name but not the address of the that the advance might be made at any time in the life of the beneficiary, printer upon them, and that tickets, for which a penny each was charged, and not within some strictly limited period. Where there was such an had been distributed by the supporters of the candidate upon which the in ention apt words, such as “ or otherwise benefit,” are always used to ex- printer's name had inadvertently not been published. Section 14 of the press it: Re Kershaw's Trusts (L. R. 6 Eq. 322), Lowther v. Bentinck (L. R. 19 Municipal Elections Act, 1884, requires that every bill, placard, or poster Eq. 166). In this case the will provided that the money was to be advanced having reference to a municipal election shall bear upon it the name and out of the
presumptive sbare." That meant that the advancement was address of the printer, and that a candidate who permits the publishing to be limited to the time when the share was presumptive and not vested, or circulation of either without the printer's name thereon shall be guilty and his lordship was fortified in that view by the statement in Davidson of having committed an illegal practice within the meaning of the Act, on Conveyancing, 2nd ed., vol. 3, p. 555, where, in dealing with the and liable upon summary conviction to a fine not exceeding £100. It was cognate subject of settlements, it was pointed out that the power of stated that Mr. Francis Smith had approved the draft of both the posters advancement should be extended to vested as well as to presumptive and the tickets in question, but being informed that the printer's foreman sbares. His lordship was further of opinion that in spite of the very was used to election matters he had instructed him to correct the proofs large powers of discretion given by the will the trustees to determine and not submit them to him. So soon as the mistake was discovered the wbat was "advancement in life" it was doubtful whether an advance of posters were cancelled and the tickets, as far as possible, recalled from money for use by the husband in his business (quite apart from the circulation. [LAWRANCE, J.-Has objection been lodged by anyone to question of the benefit to Fletcher) could be justified under the terms of either the posters or the tickets ?—No, nor is the present application for the will, for the fund was to be held for the daughter's separate use relief opposed by anyone.]