to Vol. II. is capable of improvement. In its present condition it too closely approximates to a table of contents, a fault from which, however, the index to Vol. I. is free. THE YEARLY COUNTY COURT PRACTICE, 1898. FOUNDED ON "ARCHBOLD'S COUNTY COURT PRACTICE AND "PITT-LEWIS's COUNTY COURT PRACTICE." By G. PITT-LEWIS, Q.C., and C. ARNOLD WHITE, Barrister-at-law. THE CHAPTER ON COSTS AND THE PRECEDENTS OF COSTS, by Mr. MORTEN TURNER, Registrar of the Watford County Court. TWO VOLUMES. Butterworth & Co.; Shaw & Sons. This, like other annual practices, does not call for detailed notice, the interval of time elapsing between the appearance of each new edition being so short. The work before us, which has been carefully edited, now comprises all decisions and enactments 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 books, instead of two, the additional book (III.) being devoted to the important subject of costs, and consisting of two chapters on Costs and Precedents of Costs, contributed by Mr. Morten Turner, Registrar of the Watford County Court, and one chapter (3) on Scales of Costs and Court Fees, which two branches of the subject of costs were, in the 1897 edition of the present work, dealt with in the appendix. At p. xxv. of the same volume will be found, prefixed to the County Courts Act, 1888, a useful Time and Practice Table, compiled by Mr. J. Errington, Registrar of the Carlisle County Court, and, under the heading "Administration Orders," section 22 of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), and the rules and forms thereunder are now fully dealt with at the end of chapter 2 of Book II., at p. 349, et seq., instead of being, as in the previous edition, incidentally and briefly referred to in an earlier page of the work. In Vol. II., which, it should be mentioned, comprises the law and practice of the county courts under special statutes, various alterations and additions of minor importance will be noticed. Thus, reference is now, for the first time, made in this volume to the Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70), to the Preferential Payments in Bankruptcy Amendment Act, 1897 (60 & 61 Vict. c. 19), to the Merchant Shipping Act, 1897 (60 & 61 Vict. c. 59), and to the Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), while the treatment of some of the various groups of statutes considered has been somewhat modified. To each volume a separate and improved index is appended containing various fresh titles, for the most part occasioned by the new matter now for the first time introduced. BOOKS RECEIVED. Prisoners on Oath: Present and Future. By Sir HERBERT STEPHEN, Bart., Barrister-at-Law. William Heinemann. The Law Magazine and Review: A Quarterly Review of Jurisprudence and Quarterly Digest of all reported Cases, being the combined Law Magazine, founded in 1828, and Law Review, founded in 1844. February, 1898. Stevens & Haynes. The Law relating to Markets and Fairs, and therein of Auction Marts, Sale Rooms, Hawkers, and Pedlers. By L. GACHES, Barristerat-Law. Eyre & Spottiswoode. Price 2s. 6d. The Annual Digest of all the Reported Decisions of the Superior Courts, including a Selection from the Irish. With a Collection of Cases Followed, Distinguished, Explained, Commented on, Overruled, or Questioned; and References to the Statutes passed during the Year 1897. By JOHN MEWS, Barrister-at-Law. Sweet & Maxwell (Limited); Stevens & Sons (Limited). Price 158. case." 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 unhesitatingly pronounce the gaucherie of the reporters of the Supreme Court of Georgia to be paramount. In reporting the case of The Western and Atlantic Railway Co. v. Jones, at the place where English and Canadian reporters are wont to put their head-lines, we find the following legend: "JACKSON, CHIEF JUSTICE, was providentially prevented from presiding in this The interesting lecture lately delivered by Mr. Pitt-Lewis, Q.C., in the Middle Temple Hall, on "The History of the Temple," will shortly be published. The cost is being defrayed by Mr. W. Phelps Dodge, an American citizen, who is a student of the Middle Temple, as well as a graduate of Yale University, America. This gentleman is a direct descendant of John Phelps, who was called to the Bar at the Middle Temple in 1650, and was clerk of the court which tried King Charles I. The proceeds of the sale of the lecture will be given to the Barristers' Benevolent Association. CORRESPONDENCE. THE LAND TRANSFER ACT, 1897. [To the Editor of the Solicitors' Journal.] Sir, I find that many people are under the impression that the London County Council can, at the special meeting to be held on the 15th inst., limit the area in the county and period of time for the trial of the experiment of compulsory registration of title. Will you kindly allow me to point out that the council has no such authority, and consequently if the Act is not vetoed on the 15th inst. the right of the council to in any way control the operation of the Act will be absolutely at an end. In that case the Act will remain in force in the county of London for all time or until it is repealed by another Act of Parliament. 5, Raymond-buildings, Gray's-inn, Feb. 9. J. S. RUBINSTEIN. [To the Editor of the Solicitors' Journal.] Sir,-In your editorial comments in your last week's issue on the action of the Council of the Incorporated Law Society with regard to the proposed application of the Act to London, you incline to the view that they were bound to reply to the London County Council's circular in the terms they did because the London solicitors have no representative body save the Incorporated Law Society, and therefore, if the Council of that society had not replied, these solicitors would not have been able to voice their feelings in the matter. But if they claim that that Council is primarily their representative body, they stultify themselves by objecting to a trial in their midst of the Act which (through their same Council) they agreed to support and did support. The Yorkshire societies repudiated that action of the parent society before the Bill became an Act, and the London solicitors might have found the means to do the like and so placed themselves in a position to object to the first trial being made in London. But they did not. If the Council of the Incorporated Law Society had refused to approve or support the Bill, whether actively opposing it or not, they would have been free to reply to the circular by protesting against a compulsory trial anywhere, but not even then to pick out London as the one favoured spot to be saved from it. The proposition that because the London solicitors have no other representative institution, therefore it must maintain their interests, even though public interests happen to be antagonistic to the interests of the other members, is untenable. It is something like a member of a partnership firm taking the only horse of the firm (no matter how much it may be required for their business) and using it in his private conveyance for his private purposes, thereby, to some extent, interfering with and injuring the partnership business. For their own purposes the London solicitors should provide their own horse as the provinces do by their local societies. You may say that the London member pays a larger subscription than the provincial member. And so he ought. It requires no ingenuity to prove that he gets twice the benefits, even though the contention of the Yorkshire societies as to this particular matter holds good. The provincial men subscribe to their own local societies in addition to the parent society. Moreover, the Yorkshire societies have not censured the parent On the contrary, they fear that by their action the council may have society "for hindering it (the Act) from Coming into operation." done the reverse. These points appear to me to have been fairly put by Mr. Middleton, but it is probable that more people will read your comments than will read the report itself, therefore I solicit the favour of the publication of this criticism in your next issue. 5, Leopold-street, Sheffield, Feb. 9. GEO. E. WEBSTER. [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.] JUDGMENT IN DEFAULT OF DEFENCE. [To the Editor of the Solicitors' Journal.] Sir,-Upon the perusal of the article in your issue of this date upon order 14 and the summons for directions, I notice that upon the first point dealt with by the writer of the article (a point which the plaintiff may proceed to enter judgment without order. I should he considers an easy one), he concludes that in default of defence be glad to know if there is definite authority as to this. It appears to me to be in direct conflict with the notes in the Annual Practice of 1898, to ord. 27, r. 1, p. 551, last par., and ord. 27, r. 2, It appears to me that the construction of ord. 30, r. 1, is ambiguIt may be read either "before the plaintiff takes any fresh step other than to enter judgment in default of defence," or as follows; "before the plaintiff takes any fresh step other than ous. p. 554. [To the Editor of the Solicitors' Journal.] Sir,-In reply to the letter in your issue of 5th inst. signed "H.," the Act does provide for the payment of "further duty in case of undervaluation" see section 8 (7), and see also section 11 (2), from which it may be inferred that the period during which the value of a property may be adjusted is two years from the death, but that at the end of such period, and on a certificate discharging both the property and the person accountable being given, the matter is finally closed, subject only to the question of fraud raised by section 11 (3). Rectification would be necessary in case, by reason of the discovery of additional effects, the rate of duty already paid were increased, or on a return of duty being claimed and allowed. Feb. 8. NEW ORDERS, &c. THE COLONIAL PROBATES ACT, 1892. ORDER IN COUNCIL. B. Whereas by the first section of "The Colonial Probates Act, 1892," it is enacted as follows:-" Her Majesty the Queen may, on being satisfied that the Legislature of any British possession has made adequate provision for the recognition in that possession of Probates and Letters of Administration granted by the Courts of the United Kingdom, direct by Order in Council that this Act shall, subject to any exceptions and modifications specified in the Order, apply to that possession, and thereupon, while the Order is in force, this Act shall apply accordingly." And whereas Her Majesty is satisfied that the Legislature of the British possession hereinafter mentioned has made adequate provision for the recognition in that possession of Probates and Letters of Administration granted by the Courts of the United Kingdom. Now, therefore, Her Majesty, by virtue and in exercise of the powers by the above-recited Act in Her Majesty vested, is pleased by and with the advice of Her Most Honourable Privy Council to order, and it is hereby ordered as follows:- "The Colonial Probates Act, 1892," shall apply to the British possession hereunder mentioned :- The Island of Grenada. And the Right Honourable Joseph Chamberlain, one of Her Majesty's Principal Secretaries of State, is to give the necessary directions herein accordingly. C. L. PEEL. Feb. 3, 1898. ORDER OF TRANSFER. ORDER OF COURT. Thursday, the 3rd day of February, 1898. I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, Do hereby Order that the Actions mentioned in the Schedule hereto shall be transferred to the Honourable Mr. Justice Wright. SCHEDULE. Mr. Justice Stirling (1898-K.-No. 36). In the Matter of The Kensington Co-operative Stores (Limited). Mr. Justice Stirling (1897-U.-No. 897). Mr. Justice Romer (1898-A.-No. 104). In the Matter of The Andrews Hawksley Patent Tread Co. (Limited). Harry Hooper v. The Andrews Hawksley Patent Tread Co. (Limited). HALSBURY, C. M. Labori, M. Zola's counsel, says the St. James's Gazette, is one of the youngest and most brilliant of French advocates, and is thirty-eight years of age. With his fair complexion and beard and his tall slim figure, he is a true type of the Gaul. This is not the first time that he has figured in the front rank in judicial annals. In 1894 he pleaded for Vaillant, the Anarchist, who threw a bomb in the Chamber of Deputies, and, while he condemned anarchy, his admirable address made a profound impression on the jury. CASES OF THE WEEK. LLEWELLYN v. VALE OF GLAMORGAN RAILWAY CO. No. 1. RAILWAY-OBSTRUCTION OF ROAD-PENALTY FOR NOT MAKING SUBSTITUTED ROAD-BY WHOM RECOVERABLE-ROAD BELONGING TO ADJOINING LAND OWNERS-RAILWAYS CLAUSES ACT, 1845 (8 & 9 VICT. c. 20), ss. 53, 54. Appeal by the defendants from the judgment of Wright, J., at the trial of the action without a jury (1897, 2 Q. B. 239). The action was brought under section 54 of the Railways Clauses Act, 1845, to recover £1,700 as penalties for eighty-five days' default on the part of the defendants in providing a road in substitution for another road which they had temporarily obstructed. The plaintiff was the owner of land bounded on one side by a private road, which was used by the owners of the land adjoining it, the plaintiff being, therefore, the owner of one-half of the road, usque ad medium filum. The defendants were, by a special Act incorporating the road at a point adjoining the plaintiff's land, and in constructing the the Railways Clauses Act, 1845, authorized to construct a railway crossing railway they temporarily cut through and interfered with the road, without 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 therefore sue for the penalties. Wright, J., gave judgment for the plaintiff. By section 53, if it be necessary to cross or cut through any part of any road, either public or private, so as to render it impassable for or dangerous or extraordinarily inconvenient to persons entitled to the use thereof, the company shall, before commencing such operations, cause a sufficient road to be made instead of the road to be interfered with. By made before they interfere with any such existing road as aforesaid, they section 54, "if the company do not cause another sufficient road to be shall forfeit £20 for every day during which such substituted road shall not be made after the existing road shall have been interrupted, and such penalty shall be paid to the trustees, commissioners, surveyor, or other person having the management of such road, if a public road, and shall be applied for the purposes thereof, or, in case of a private road, the same shall be paid to the owner thereof, and every such penalty shall be recoverable with costs by action in any of the superior courts." THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.), having taken time to consider, dismissed the appeal. CHITTY, L.J., read the judgment of the court, in the course of which he said that the defendants' contention-namely, that "the owner" meant all the owners of the road-would operate to defeat the obvious intention means of compelling the owner of the other half to join in suing. In of the Legislature in many cases, because the owner of one half had no their opinion the £20 a day was a penalty, and not a sum given as compensation for the wrong done. One penalty only was inflicted for each day during which default existed, and that penalty was not apportionable, but was one entire sum of £20. In their opinion the owner of the soil of part of that portion of the road interfered with could sustain an action for the penalty, and the first of such owners who sued and brought his action to trial could recover.-COUNSEL, C. A. Russell, Q.C., and E. F. Buckley; Cripps, Q C., and Kenyon Parker. SOLICITORS, Soames, Edwards, & Jones, for Randall & Cay, Bridgend; Downing, Holman, & Co, for Downing & Handcock, Cardiff. [Reported by W. F. BARRY, Barrister-at-Law.] Appeal from an order of Ridley, J., at chambers, prohibiting the Mayor's Court, London, from taxing the plaintiff's costs, except in respect of court fees and allowances to witnesses, in an action of libel tried with a jury, in which the plaintiff recovered a verdict for £2 108. (reported 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 certified for counsel. The judgment was entered for the damages and costs. The registrar taxed the plaintiff's costs on the scale applicable to cases where less than £20 was recovered, and the judge of the Mayor's Court dismissed an application to review the taxation. The defendant contended that there was no scale of costs in the Mayor's Court applicable where £5 or under was recovered, and that therefore the Mayor's Court had no jurisdiction to allow the plaintiff's costs, except those relating to court fees and allowances to witnesses. The plaintiff contended that, 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. THE COURT (CHITTY and COLLINS, L.JJ.), having taken time to consider, allowed the appeal. CHITTY, L.J., said that the defendant had not shewn that the Mayor's Court had not an ancient jurisdiction to give costs. It was admitted that it was the practice of the court to give costs, and, in the absence of anything to the contrary, the presumption arising from the practice would be in favour of the jurisdiction. That presumption was supported by section 11 of the Mayor's Court Procedure Act, 1857. The question, therefore, was whether that jurisdiction had been taken away. It was plain that none of the scales of costs (exclusive of court fees) under the Mayor's Court Rules, 1890, were applicable to cases where the amount recovered was £5 or under. There was, therefore, no scale of costs applicable to the present case. There was, however, no rule to the effect that no costs should be allowed other than those for which scales were prescribed. Rule 1 of the Rules of 1890, which provided that all costs should be taxed according to the scales of costs set out in the schedules, was, in his opinion, confined to cases where the scales applied, and where the scales did not apply the taxation was left unfettered. The proviso in ord. 8, r. 1, of the Rules of 1892, that, where the action was tried with a jury, "the costs" should follow the event, unless the judge for good cause otherwise ordered, meant costs according to the scales where they applied. Section 11 of the Act of 1857 shewed that, where it was intended to take away a jurisdiction as to costs, plain and direct words were used. There were no such words in the rules of 1890 or 1892. It was difficult to suppose that the Mayor's Court in framing the rules, or the Rule Committee in sanctioning 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 would seem advisable that the rules should be amended by providing a scale of costs to cover cases like the present. COLLINS, L J., delivered judgment to the fame effect.-COUNSEL, H. Reed, Q.C., and M. R. Emanuel; S Lynch. SOLICITORS, Emanuel, Round, & Nathan; Swepstone & Stone. [Reported by W. F. BARRY, Barrister-at-Law.] GUARDIANS OF DORKING UNION v. GUARDIANS OF ST. SAVIOUR'S POOR LAW-SETTLEMENT-DIVIDED PARISH-LOCAL GOVERNMENT ACT, 1894 a settlement gained by birth is a settlement in the particular parish, and In 1854 Mr. de Nicols, a domiciled Frenchman, married his cousin, a domiciled Frenchwoman, in Paris. No contract or settlement was executed by the parties on their marriage, in which case, according to the French law of " community of goods," each party was entitled to onehalf of the property acquired during the coverture by either or both of 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 naturalized British subjects. In 1897 Mr. de Nicols died, and by his will, made according to English form, he gave his residuary real and personal estite, consisting of property acquired in England, upon trust for his wife for life, and upon her death for his daughter, her husband and children. This was a summons taken out by Mr. de Nicols' widow claiming to be entitled to one-half of all the property in the possession of her husband or of him and herself jointly at his death, notwithstanding the will. Mrs. de Nicols' claim depended upon whether the change of domicil of the parties altered their rights with respect to their property acquired during coverture conferred by the French law, the law of their matrimonial domicil. The question was only argued with respect to "moveable goods." This was an appeal by the guardians of St. Saviour's Union from a decision of the Divisional Court-Collins, L.J. (then Mr. Justice), and Ridley, J. (reported 41 SOLICITORS' JOURNAL 697). A special case was stated by quarter sessions of the county of London for the opinion of the Divisional Court raising a question as to the result for purposes of pauper settlement law of the division of a parish under the Local Government Act, 1894. The case was stated on an appeal from the order of justices. It appeared therefrom that A. E. Budger, a pauper, was born on the 26th of December, 1879, at Westcott, a hamlet then forming part of the parish of Dorking, in the Dorking Union, in the county of Surrey. He never acquired a settlement elsewhere. In August, 1896, he became chargeable to the St. Saviour's Union, in the county of London, which, on the 18th KEKEWICH, J.-The only question 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 his 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 section 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 sanitary district and during the remainder of the joint lives of the spouses. It is admitted on the part which 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 sets of overseers 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. C. 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 had 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 alteradestroyed 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 rights are. We must not apply the doctrine of domicil to the moment of death only by looking at the then domicil of the husband. It is a fallacy to say that his domicil at death governs rights of his which do not exist. He does not affect to dispose of property by his will which is not his. To ascertain what was his property and what was not we must look THE COURT (LINDLEY, M.R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal. LINDLEY, M.R.-I do not see how we can differ from the Divisional Court. All that I can say is that Reg. v. Tipton and these other cases put a narrow construction on the Act of 14 Chas. 2, c. 12. But it is clear that com back and see what was the law governing his proprietary rights, and those rights, I think, were fixed at the time of his marriage and are governed by the French law of community of goods both with respect to the present and after-acquired goods. There is nothing to alter that contract, and there is nothing that requires me to say that by a change of domicil there was any surrender by the wife of her rights under the matrimonial contract. I must therefore hold that the husband by his will disposed only of such property as was properly his, and that it did not include what was his wife's property under the matrimonial contract, and declare that the wife's right under the French law to a moiety of the moveable property acquired during the coverture by the husband and wife remains unaffected by the will.-COUNSEL, Renshaw, QC., and Ingle Joyce; Warrington, Q.C., Elgood, and Maugham; A. V. Dicey, Q.C., and Whinney. SOLICITORS, Hicks, Arnold, & Mozley; Tyrrell Lewis; Lewis & Broadbent. [Reported by C. C. HENSLEY, Barrister-at-Law.] BAXTER v. MIDDLETON (Re MIDDLETON AND BAXTER AND THE vendor and PURCHASER ACT, 1874). Kekewich, J. 8th Feb. "LIS PENDENS ❞—ACTION FOR SPECIFIC PERFORMANCE DISMISSED-ORDER VACATING REGISTRATION-30 & 31 VICT. c. 47, s. 2. This was an action by a purchaser to enforce against the vendors specific performance of a contract for the sale of a business together with the business premises and goodwill. Subsequently to the issue of the writ the defendants, the vendors, took out an originating summons under the Vendor and Purchaser Act, 1874, to have it declared that the contract was not binding on them. Immediately after the issue of the writ the plaintiff registered the action as a lis pendens. Upon the action and summons coming on by order for trial and hearing together, the action was dismissed with costs, and on the summons no order for costs or otherwise was made. The plaintiff at once gave notice of his intention to appeal, but, notwithstanding this, counsel for the defendants asked for an order vacating the registration of the lis pendens under the power given to the court by section 2 of 30 & 31 Vict. c. 47, and referred to Pooley v. Bosanquet (7 Ch. D. 541). KEKEWICH, J., after referring to the case of Strousberg v. M'Gregor (34 SOLICITORS' JOURNAL 180), made an order to the effect that, if by that day fortnight the appeal was not set down, the registration should be vacated. -COUNSEL, Renshaw, Q.C., and Martelli; Warrington, Q.C., and Ingle Joyce. SOLICITORS, Poole & Robinson; Donald MacMillan. [Reported by R. J. A. MORRISON, Barrister-at-Law.] J. LYONS & SONS v. WILKINS AND OTHERS. Byrne, J. 3rd Feb. CONSPIRACY AND PROTECTION 10 PROPERTY ACT, 1875 (38 & 39 VICT. c. 86), s. 7 (4)-STRIKE-TRADES UNION-" WATCHING AND BESETTING EMPLOYMENT OF UNION FUNDS-CONSPIRACY. Action. The plaintiffs are leather bag manufacturers at Red Crossstreet, London, E.C. The defendant Wilkins was the secretary, and Thompson, Laverick, and Goodall were the trustees of a trades union called the Amalgamated Trade Society of Fancy Leather Workers, registered under the Trades Union Act, 1871; while the defendant Clarke was a member of the executive committee of the same society. In February, 1896, a dispute arose between the plaintiffs and their workpeople, 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 the purpose of compelling him to cease to work for them. The nature of the relief asked for against the defendants will appear in the judgment. An interlocutory injunction was granted by North, J., and was affirmed by the Court of Appeal in March, 1896. A report of the case before the Court of Appeal will be found 40 SOLICITORS' JOURNAL 372. The action was tried before Byrne, J., in November of last year, but judgment was reserved until after the decision of the House of Lords in Allen v. Food. Originally the Amalgamated Society was made a defendaut, but it was ordered to be struck out as incapable of being made a party. During the trial leave was obtained to amend the pleadings by stating that Thomp. son, Laverick, and Goodall were sued in their representative capacity" in order, if possible, to make the funds of the society liable to pay costs or to prevent them being used for defending the action. Feb. 3.-BYRNE, J.-In this case the plaintiffs have obtained an injunction until judgment to restrain the defendants, Wilkins and Clarke, their servants and agents, from watching or besetting the plaintiffs' works for the purpose of persuading, or otherwise preventing, persons from working for them, or for any purpose, except merely to obtain or communicate information; and also from preventing Adolph Schoenthal or other persons from working for the plaintiffs by withdrawing his or their workmen or work women from their employment respectively. By a slip, the order as drawn up has been made more extensive, but the terms I have mentioned are the true terms of the order pronounced by the Court of Appeal, as appears by the judgment of Kay, L.J. (L. R. 1896 1 Ch. 811, 832). The plaintiffs have at the trial in substance clearly proved the case made upon the motion of watching and besetting the plaintiffs' premises illegally, aud in my judgment they are entitled to have the injunction made perpetual so far as the first part of the judgment is concerned, for the reasons given by the Court of Appeal upon disposing of the motion; and I do not consider it necessary to add anything upon the law bearing upon this part of the case. I consider that it is clearly proved that the defendants Wilkins, Clarke, and Thompson watched and beset the plaintiffs' works or place of business, and the approaches thereto, for the purpose of persuading or otherwise preventing persons from working for the plaintiffs, and for purposes other than those of merely obtaining or communicating information. In reference to the second part of the injunction I think the case made upon the motion is fully proved, and I think also it has been clearly shewn that the same defendants illegally watched and beset the premises of Schoenthal for the purpose of preventing him from working for the plaintiffs, but I think it probable that the Court of Appeal would have framed the second part of the injunction granted in a different manner had the case of Allen v. Flood been then decided by the House of Lords. At any rate, the point has not been specifically argued whether or not, apart from the question of malice, it was unlawful to call out the workmen of Schoenthal in order to prevent him from working for the plaintiffs. Had the matter been one of importance in the present case, I should probably have required further argument, but the strike is long since over, and I have assumed that the parties would prefer not being put to the trouble and expense of re-argument upon this point. I propose, therefore, to grant a perpetual injunction following the terms of the first 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 premises of Adolph Schoenthal for the purpose of persuading or otherwise preventing him from working for the plaintiffs, or for any purpose except merely to obtain or communicate information." The injunction must extend to the defendant Thompson, who participated in the wrongful acts committed. The acts in question being unlawful, the other defendants, if they conspired to induce the commission of such acts, are equally liable to an injunction, and by their amended defence all the defendants make common cause and accept common responsibility in respect of the matters I have referred to, as well as in respect of the alleged libels, which still remain to be dealt with. And, indeed, it is difficult to see how, as officers of the society under an obligation to attend all meetings of the executive council, under whose directions the defendant Wilkins acted, and with power to express their opinions, they could well do otherwise, whatever the domestic constitution of the society to which they belong may provide as to their voting powers. The plaintiffs further ask for an injunction to restrain the defendants from maliciously inducing or conspiring to induce persons not to enter into contracts with the plaintiffs, and I postponed judgment at the request of both parties until after the decision of the House of Lords in Allen v. Flood should have been given. The effect of that decision is, in my opinion, to shew that the plaintiffs are not entitled to this injunction. It was conceded by the plaintiffs that they could not succeed unless they could shew malice; and it is the law, as finally determined by the House of Lords, that the existence of a malicious motive cannot in such a case as this render unlawful an act or acts otherwise lawful. injunction was asked for by an amendment made by leave at the trial against the defendants Thompson, Laverick, and Goodall, as trustees of the society, from applying the funds of the society in furtherance of the wrongful acts complained of. I am of opinion that there is no legal ground to justify such an injunction, and I refuse it and disallow the plaintiffs the costs of the amendment made in pursuance of such leave. His lordship then held that the charge of libel was proved, and he awarded £5 as damages.-COUNSEL, Eve, Q.C., and Ward Coldridge; Jenkins, Q.C., and W. H. Cozens-Hardy. SOLICITORS, Shaen, Roscoe, & Co. Warburton & De Paula. [Reported by NEVILLE TEBBUTT, Barrister-at-Law.] Winding-up Cases. Another Re LAND MORTGAGE BANK OF FLORIDA (LIM.). Wright, J. 3rd Feb. COMPANY-WINDING UP-SCHEME SANCTIONED BY THE COURT-MANAGEMENT EXPENSES-UNDISTRIBUTED ASSETS-JOINT-STOCK COMPANIES ARRANGEMENT ACT, 1870 (33 & 34 VICT. c. 104)-COMPANIES (WINDING-UP) ACT, 1890 (53 & 54 Vicr. c 63), s. 15-COMPANIES WINDING-UP RULES, 1891, R. 127. This was an application by the Board of Trade for an order on the liquidators of the above company to pay into the Companies' Liquidation Account at the Bank of England certain surplus of calls which they held in their hands. The company had gone into voluntary liquidation in December, 1895. On the 15th of April, 1896, a scheme under the JointStock Companies Arrangement Act, 1870, was presented to and sanctioned by the court under which the uncalled capital was to be called up, and out of it the debenture-holders were to be paid a dividend of 12s. 6d. in the pound in September, 1897, and the balance in 1902. In the meantime the interest was to be kept down, and the liquidators were at their discretion to apply any surplus from calls after the first dividend was paid for the payment of management and other expenses. They also had power under the scheme to borrow money for protecting and developing the assets. A trust deed embodying the scheme was afterwards executed. The liquidators delivered statements of account to the Registrar of Joint-Stock Companies, as required by the Companies (Winding-up) Act, 1890, s. 15. These statements chewed that the liquidators had a surplus of calls in their hands after paying the first dividend. The Board of Trade directed them to pay this surplus into the Companies' L'quidation Account. The liquidators refused on the ground that this surplus was not "unclaimed or undistributed assets" within the meaning of section 15 (3) of the Companies (Winding-up) Act, 1890. The Board of Trade in consequence made this application. WRIGHT, J., held that the application failed. Under section 2 of the Joint-Stock Companies Arrangement Act, 1870, a scheme, when sanctioned, became binding on the creditors concerned and also on the liquidator. This scheme provided that any surplus assets which might remain after paying the dividend on the debentures might be applied before paying any further dividend in the payment of wages, [Reported by C. W. MEAD, Barrister-at-Law.] High Court-Queen's Bench Division. MOLYNEUX v. FLETCHER. Kennedy, J. 4th Feb. without power of anticipation: see observations of Lord Hatherley in [Reported by F. O. ROBINSON, Barrister-at-Law.] ACT, 1884. Ex parte PENNINGTON. Div. Court. 8th Feb. MUNICIPAL CORPORATION-ELECTION OF COUNCILLORS-RETURN OF EXPENSES —LIABILITY TO MAKE Return, ALTHOUGH NO EXPENSES WERE ACTUALLY INCURRED-MUNICIPAL ELECTIONS (CORRUPT PRACTICES) ACT, 1884 (47 & 48 VICT. c. 70), s. 21, SUB-SECTIONS 4, 7. This action was tried before Kennedy, J. The plaintiffs were infants suing by their next friend, and the defendants were trustees under the will of Edward Durant. The plaintiffs claimed (1) a declaration that the defendant Fletcher had been guilty of a breach of trust, and (2) the appointment of new trustees. The testator died on the 20th of April, 1878, leaving two daughters, infants, surviving him, both of whom were still living. They were Fanny Jane, who came of age in 1880, and 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 appointed all his real and personal estate with certain directions as to realization and investment, and made his children beneficiaries under the will. The will contained a direction to the trustees to apply in or towards the maintenance and education or otherwise for the benefit of each child of the testator entitled under the trusts of the will to a share not absolutely vested the annual income of such share. The will further declared that it should be lawful for the trustees to apply in or towards the advancement in life of each child a sum not exceeding £500 of her presumptive share, such sum or lesser sum to be paid if the trustees should think fit, notwithstanding that the child's share was settled as thereafter mentioned, and the trustees were to be sole judges of the advisability of such payment and of what the term "advancement in life" might signify. Subject to that power the trustees were, after the shares became vested by the children coming of age, to pay the income to 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, upon the same trusts as those of the will, for the daughters' children. If the daughters had no children their shares were to go as they might appoint and in default of appointment to their next-of-kin. The defendant Fletcher was appointed a trustee of the will by order of the court in 1887. The defendant Clark became a trustee after the events in respect of which the claim in this action was made had taken place. The plaintiffs alleged that in 1887 the defendant Fletcher and his then cotrustee committed a breach of trust in advancing out of the capital funds £500 to Miss Durant and £250 to Mrs. Molyneux, under the circumstances mentioned in the judgment. The action was tried without a jury at the last summer assizes at Liverpool and adjourned to London for further argument. In this case counsel moved ex parte that Mr. John Down Pennington might be relieved from the penalties imposed on him by sub-section 4 of section 21 of the Municipal Elections Act, 1884, for having inadvertently omitted to make return within the specified time of his election expenses. election of councillors for the Wellington Ward of the county borough of The fact was that Mr. Pennington being the only candidate at the last A short time back the Hanley, he had incurred no expense whatever. case of Ex parte Robson (18 Q. B. D. 336) was brought to his notice, in which a Divisional Court held that under precisely the same circumstances the candidate was liable unless a return was made as required by the Act. In that instance the court granted the relief asked. Section 21, subsection 4, of the Municipal Elections Act, 1884, directs that after the expiration of the time for making such return and declaration, the candidate, 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 men. tioned in this Act, sit or vote in the council, and if he does so he shall forfeit £50 for every day on which he so sits or votes to any person who sues for the penalty. By sub-section 7 of the same section it is provided that if the candidate applies to the High Court and shews that the failure to make such return and declaration has arisen by reason of inadvertence order and declaration as to the court seems just. or on any reasonable cause of a like nature, the court may make such an ought under the circumstances to be granted.-COUNSEL, A. J. Ram. THE COURT (LAWRANCE and RIDLEY, JJ.) decided that the relief sought SOLICITORS, H. G. Church, for Arthur Challinor, Hanley. [Reported by ERSKINE REID, Barrister-at-Law.] Re THE MUNICIPAL ELECTIONS (CORRUPT AND ILLEGAL PRAC- KENNEDY, J., after stating the facts and referring to the terms of the will as stated above, said that the plaintiffs' claim was put upon the 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 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 pressing him for payment, and it was said that, though the money was nominally advanced under the power contained in the will, it was in reality advanced with the well-understood purpose that it should pass into the hands of Mr. Molyneux, to be used by him in reduction of his debt to Fletcher. In the first place his lordship thought it right to say 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 made. It was clear on the authorities that where power was given to trustees to apply capital money for the advancement in life of a child, that power was to be construed according to a well-understood meaning. Undoubtedly instances occurred in reported cases where it was intended that the advance might be made at any time in the life of the beneficiary, and not within some strictly limited period. Where there was such an 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 Eq. 166). In this case the will provided that the money was to be advanced out of the "presumptive share.” That meant that the advancement was to be limited to the time when the share was presumptive and not vested, and his lordship was fortified in that view by the statement in Davidson on Conveyancing, 2nd ed., vol. 3, p. 555, where, in dealing with the cognate subject of settlements, it was pointed out that the power of advancement should be extended to vested as well as to presumptive sbares. His lordship was further of opinion that in spite of the very large powers of discretion given by the will to the trustees to determine advancement in life" it was doubtful whether an advance of money for use by the husband in his business (quite apart from the question of the benefit to Fletcher) could be justified under the terms of the will, for the fund was to be held for the daughter's separate use what was In this case counsel moved for relief under section 21, sub-section 7, of the Municipal Elections Act, 1884, from penalty incurred by Mr. Francis Smith, a candidate for the Northern Division of the Municipal Ward of Lambeth, and also on behalf of Mr. Ward, his printer. It appeared that certain posters had been issued with the name but not the address of the printer upon them, and that tickets, for which a penny each was charged, had been distributed by the supporters of the candidate upon which the Municipal Elections Act, 1884, requires that every bill, placard, or poster having reference to a municipal election shall bear upon it the name and address of the printer, and that a candidate who permits the publishing or circulation of either without the printer's name thereon shall be guilty of having committed an illegal practice within the meaning of the Act, and liable upon summary conviction to a fine not exceeding £100. It was stated that Mr. Francis Smith had approved the draft of both the posters and the tickets in question, but being informed that the printer's foreman was used to election matters he had instructed him to correct the proofs and not submit them to him. So soon as the mistake was discovered the posters were cancelled and the tickets, as far as possible, recalled from circulation. [LAWRANCE, J.-Has objection been lodged by anyone to either the posters or the tickets?-No; nor is the present application for relief opposed by anyone.] |