Page images

such an application may be granted is well known : The court must be of opinion that the verdict is so unreasonable as to shew that the jury have not really performed the judicial duty cast upon them : see per Lord Hsnsntmr in lllétrcpolitan Railway] Co. v. Wrzyht (11 A p. Cas. 152). Of course, the jury are the judges of the facts, and) it is no part of the duty of the Court of Appeal to review those facts and upset the verdict if it is one which might reasonably have been arrived at. It must, therefore, in all cases be an arduous task to convince a tribunal that a verdict was absolutely perverse and unreasonable. But where the tribunal is the Court of Appeal, the task has been more than arduous ; it has been impossible. Consequently, no suitor could be advised to attempt to interfere with an adverse and unreasonable verdict unless he were prepared to carry his case to the supreme tribunal. This was in most cases prohibitive, and the result has been that the inflexible rule of the Lords Justices never to interfere with a verdict has exalted the British jury to a pinnacle of infallibility. In Jones v. Spencer the evidence on the main point in dispute—the state of health of a horse on a given dateappears to have been conflicting; it evidently impressed the members of the Court of Appeal differently, for while Lord Esnnn, M.R., and OHITTY, L.J., refused to order a new trial, Lorns, L.-I, was willing to do so. The House of Lords have made the order unanimously. This decision cannot be without its effect upon the Court of Appeal, and it has come at a time when the changes in the composition of that court are likely to make it somewhat sensitive to the judgments of the Upper House. But although “ new trials” may perhaps have been restored to something of their former importance, there is little likelihood that there will be any disposition to favour reckless appeals upon questions which are prinz-ti facia for the jury, and for them alone.

IN rnn case of Pollock v. Garle the Court of Appeal (Lnvnnnr, M.R., and C11rr'rY, LJ.) have placed a necessary limitation upon the generality of section 7 of the Bankers’ Books Evidence Act, 1879. Under the section the court may, on the application of any party to a legal proceeding, order that such party be at liberty to inspect and take copies of any entries in a banker’s book for the purpose of the proceedings. It might be supposed that the section contemplated the inspection of entries relating to the account of a party to the proceedings, but it is not expressly so limited, and it leaves the door open for an application such as was made in Pollock v. Garle. The action was brought for rescission of a contract to purchase shares on the ground that the vendor had made a misrepresentation as to the financial position of the company. One of the misrepresentations alleged was that on a given date the company had a specified amount standing to its credit at its bankers. An obvious way of testing the truth of this assertion was to obtain an order for inspection of the banker’s books, and such an order was made by Ksxnwrcn, J., under section 7 of the Act. But however convenient such a proceeding might be to the plaintiff, it was naturally distasteful to the company. who were no parties to the action. A plaintifi does not by merely bringing his action entitle himself to exact information from strangers, and whatever rights he may have at the trial, it would be very oppressive to give him these facilities for the purpose of preparing his case. The Bankers’ Books Evidence Act, however, does no more than vest a discretion in the court to make an order under section 7, and there is no need to exercise this discretion in a case where the plaintiff is seeking information to which he is not properly entitled. So, accordingly, the Court of Appeal held, and reversed the order of Knxnwrcn, J . Only in very exceptional cases will an order be made under the section for inspection of the account of a stranger to the action.

[graphic][merged small]


[ocr errors]

the remainder upon a subsequent date ; in these cases the question arises, When must the notice of claim be given ? Re Paul, Ezparte Earl of Portarlington (24 Q. B. D. 247), was a case of this kind; there the tenant gave a notice to quit expiring on the llth of October, and on that date he gave up 1,000 acres, but under a local custom he retained 200 acres until the 11th of February following, and certain barns and outbuildings until July. His notice of claim was served on tho 29th of November -—viz., after he had given up the l,000 acres, but more than two months before he had given up either the 200 acres or the buildings. It was held by Lord Consumes, C.J., and Msrnnw, J., that the notice was in time, the words “ determination of the tenancy ” in section 7 meaning “ the end of the holding of the land.” It is not clear from the judgments whether the decision would have been the same if buildings only, and not agricultural land, had been held over for two months after the notice. In Black v. Clay (1894, A. C. 368) the facts were similar; grass land, part of the holding, was given up at \Vhitsuntide, the arable land was held over till Martiumas and the buildings till the following Whitsuntide. The case arose under the Scotch Act (46 & 47 Vict. c. 62), section 7 of which requires notice of claim to be given in the same terms as are prescribed by section 7 of the English Act already referred to, except that the period is four months instead of two. Here, also, a notice, given after the grass land had been quitted, but more than four months before the giving up of the arable, was held to be in time. Lord Warsou held that “determination of the tenancy " referred “ to the time when the tenant finally gives up possession of the subjects which in the statute are described as his ‘holding,’ ” and a “holding,” under both the English and the Scotch Acts, must be “either wholly agricultural or wholly pastoral or in part agricultural and as to the residue pastoral.” The same learned judge expressed serious doubts whether the tenant, after giving up the arable land at Martinmas, remained in possession of any holding within the meaning of the Act; the bare possession of a barn, barnyard, and two cot-houses unconnected with pastoral or agricultural land would not, he thought, be possession of a holding. In Jllorley v. Carter the court had to deal with a case where all the land had been given up in February, certain farm buildings only being retained (under the agreement for tenancy) until May, and the notice of claim being given in the interval, but more than two months before the buildings were to be surrendered. Wmonr and KENNEDY, JJ., decided that the notice was out of time, there being no “holding” left in the possession of the tenant. In so deciding they followed the dictum of Lord Wnrson to which attention has been called. It is somewhat strange that when these Acts were passing through Parliament no definite provision was made for cases such as these, which must have been familiar to the representatives of agricultural constituencies. The result of the authorities seems to be, that the two months’ (or in Scotland four months’) period must be reckoned back from the date on which the last piece of agricultural or pastoral land is given up, but that upon that date the whole tenancy is determined for the purposes of the Act, although buildings may still be held over. It appears also from the two earlier cases that the claim of which notice is given may relate to the whole of the holding, and not merely to the part which is still retained. The questions involved are diflicult, and will probably be considered by the Legislature before


IN THE recent case of Shaw v. Lutman (ante, p. 34) the oftconsidered question—namely, at what stage of the proceedings must an intending appellant from the decision of a county court request the judge to take a note—again arose. There, the county court judge having stopped the case as soon as the mere facts had been stated, and directed judgment to be entered for the plaintiff, the defendant’s counsel asked the judge to take a note, which, however, the latter declined to do, on the ground that the request was made too late. It was, however, held by the Q.ueen’s Bench Divisional Court (\V1uonr and Bacon, J-T.) that the county court judge was wrong in refusing to take a note under the circumstances above stated. This decision is, we think, fully justified by the language of section 120 of the County Courts Act, 1888, which, it will be remembered, replaces


the provision contained in section 6 of the repealed County Courts Act, 1875, and now governs the right of appeal to the High Court from the county court. It is thereby provided that, “at the trial or hearing of any action or matter in which there is a right of appeal, the judge, at the request of either party, shall make a note of any question of law raised at such trial or hearing, and of the facts in evidence relation thereto, and of his decision thereon, and of his decision of the action or matter.” Now, certainly, this provision is somewhat ambiguous, as it does not state in so many words at what time the prescribed request must be made. It has, however, been held that a point of law must be raised first, and moreover, that, if there be more questions of law than one, the request to take a note must be made in respect of each (Reg. _v. ('i‘£_y of London Court, 70 L. T. 595). Obviously, therefore, in the case under consideration, the defendant could not have made his request earlier than he did-—-namely, when the judge, after hearing the facts, directed judgment to be entered for the plaintiff, for, till then, no question of law appears to have arisen. It seems to us, however, that the whole subject of when the request to take a note must be made should be reconsidered by the Legislature, as, save where a definite point of law arises at the outset of the trial, the ditficulty of literally complying with section 120 of the County Courts Act, 1888, as interpreted by the High Court in Reg. v. Cify of Lomlon Court (szqera), is obviously very great. The statute seems to suppose that the point of law may be stated at once at the trial and then a note taken of all the evidence ; but it is obvious that a point of law may arise in the course of the case, or it may arise afterwards at the very end, and when the evidence has all been taken (see per BaA_iuwiii.r., L.J., _in llorgzm v. Rees, 25 W. R. 213, 6 Q. B. D., at p. 51§). It is, indeed, true that, under R. S. C., ord. 59, r. 8, the High Court has power to admit any evidence or statement of what occurred in the county court other than the judge’s notes. This,_however, can only be done when a request for a note has previously been made at the proper time in the county court itself (Cook v. Gordon, 61 L. J. Q. B. 445), and therefore does not meet _the exigencies of appellants from the county court, who, we think, should be entitled, in every case above £20 at all events, to request the judge to take a note of the evidence before any point of law has actually arisen, if, in the opinion of the counsel or solicitor on either side, one or more points of law are hkely to arise. Where the parties appear in person the facts are not usually such as give rise to appeals, and therefore may fairly be left out of consideration, especially as in such cases't_he judge would, in the event of a doubtful point of law arising, mero motu suggest and facilitate an appeal if necessary.

[ocr errors]

ONE or the most extraordinary scenes ever witnessed in a court of justice occurred on Tuesday last in the Assize Court at Northampton. The court is one of those in which the whole well is filled by a very large table round which_ counsel and reporters sit. A man named BERRY was pu_t i_n the dock charged with burglary. The substance of the indictment was read to him, and he had just been asked in_ the usual manner whether he was guilty or not guilty, when, with a yell, he leaped over the front of the dock and over two rows of counsel on to table, apparently making straight for the judge. He fell on his hands and knees, but was up in an instant with_ his hands to his trousers, some say with the intention of tearing them oil”, some say with the intention of getting something out of his pocket. One of the barristers present, howeve_r,_ sprang upon the table and seized the desperate man, and was joined by one or two of his learned friends. The strange sight was then seen _for a short time of a couple of barristers in wigs and gowns fighting with a. prisoner on the table of the court. Of course the warders and police soon reached the table, and the man was removed, struggling violently and shrieking blasphemies. WILLS, J ., the presiding judge, ordered the trial to be postponed till the next day, and directed that the prisoner should then be put on his trial in fetters. Next day the ruffian was brought before the court, but he was so obstreperous that the learned judge ordered him to be sent below, and the trial to proceed in his absence. This is certainly a. very unusual course; probably unprecedented. Almost all the authorities


on the criminal law of England state that a risoner charged with felony must be present in court during the whole of his trial. Sir Jniins STEPHEN, however, says, in his Digest of the Law of Criminal Procedure, that if a prisoner misconducts himself in such a manner as to make it impossible to try him with decency, the court probably has power to order him to be removed and the trial to proceed in his absence. The learned author states that he had never heard of a case in which this was actually done, but that Lord GRANWOBTII, when ROLFE, B., threatened to have Rusii, the Norwich murderer, removed if he persisted in a singularly indecent course of crossexamination. He also mentions a case in which a convict at Portland was tried at Dorchester for the -brutal murder of one of the warders of the prison before SHEE, J., then sitting as commissioner. This prisoner behaved with such extraordinary violence that the judge had to give orders for him to be fastened with chains or straps, and also (it is believed) to be gagged, before his trial could proceed. Not even in such a case, however, was he removed from the court; and probably most persons will agree with Sir J. STEPHEN that, in a trial involving the penalty of death or any severe punishment, the prisoner should not be removed until every other possible measure has failed. In charges of misdemeanour, on the other hand, the authorities agree that, the accused having pleaded in person, the trial may proceed in his absence. There have been instances of this, but they are very rare. In the famous Tichborne case, for example, the defendant was one day taken ill in the course of the trial, and was allowed to leave the court until his recovery, the trial meanwhile proceeding in his absence. Probably, even in this case of misdemeanour, however, the trial would have been adjourned if the defendant had objected to its proceeding in his absence.


As Is well known, an annual capitation grant is made by the Government to every volunteer corps in Great Britain in respect of each member of the corps who makes himself “eflicient” during the year. Since, therefore, it is a serious pecuniary loss to the corps for a. member not to become eflicient, probably every corps has adopted a rule under which a volunteer who fails to earn the grant is bound to pay to the funds of the corps a sum equal to that which he ought to have earned. There has, however, been a considerable difficulty in recovering these sums. The rule purports to be made under section 24 of the Volunteer Act, 1863, which provides that, subject to certain requirements, “the ofiicers and volunteers belonging to a volunteer corps may from time to time make rules for the management of the property, finances, and civil affairs of the corps.” By section 27 it is enacted that‘ “if any person belonging, or having belonged, to a volunteer corps neglects or refuses to pay any money . . . due imder the rules of such corps and actually payable by him, or to pay any fine incurred by him under the rules of such corps, such money or fine shall ” be recoverable in a summary manner before justices. In Reg. v. Lewis and Hoes (1896, 1 Q. B. 665), however, the LORD CHIEF Jnsrion and WRIGHT, J ., held that there was no power under section 24 to make such a rule, as it was not a rule for the management of the property, finances, or civil affairs of the corps. This decision was felt to be a very serious matter for many corps, and accordingly the Volunteer Act, 1897, was passed, which came into force last August. In order to remove doubts, it is declared by that Act that the power to make rules under section 24 of the Volunteer Act “shall extend, and be deemed to have always extended, to rules for securing the efficiency of the members of the corps, and that a fine for the breach of any rule made under the aforesaid section shall be a sum of money recoverable on complaint to a court of summary jurisdiction.” As this Act is clearly retrospective, it is possible to take advantage of it at once, although the matter complained of may have occurred before the Act was passed. Accordingly, a batch of summonses were heard a few days ago at the Worship-street police-court against members of a Middlesex corps who had failed to make themselves eflicient during the past year, and orders were made for payment of the sums claimed. Some of those against whom proceedings were taken defended them


selves on the ground that they had resigned before the year in question had begun, but they were in several cases surprised to find that these resignations were not good. It is well for every volunteer to remember that, under section 7 of the Volunteer Act, 1863, he can only quit the service after giving his commanding officer fourteen days’ notice in writing of his intention, delivering up all arms, &c.,_issued to him which are the property of the corps, and paying all money due by him under the rules of his corps. Further, it should be noticed that these sums payable because of failure to become etficient are recoverable under the Act of this year as a civil debt by complaint, and not by information.


A CORRESPONDENT calls our attention to the recent case of Clarke v. M‘1urk (reported in the Times of the 9th inst.), in which BIGHAM, J., decided, on the authority of Willson v. Lava (4-1 W. R. 4-50; 1896, 1 Q. B. 626), that a sum specified in an agreement to be recoverable as liquidated damages was in fact to be treated as a penalty; and he suggests that W illson v. Low does not really support the decision. Possibily, however, our correspondent has not noticed that the sum was stated to be recoverable, not only in the event of a breach of the stipulation which was in question in the case, but also of any of the stipulations of the agreement on the part of the plaintiff to be performed; and it is probable—though the report of the case, which is very short, does not shew this—that such stipulations were of varying degrees of importance. If so, the authority of TVi'llaon v. Love seems to be exactly in point, and the sum was rightly treated as a penalty. The plaintiff in Clarke v. 1l[‘Turk had been in the employ of the defendant as instructor in the (lefendant’s school of fencing, under an agreement which contained a clause restraining the plaintiff from competing with the defendant after he had left his employment. For the performance of this clause and all the other provisions of the agreement on the part of the plaintiff, the plaintiff bound himself in the sum of £1,000 to be recoverable as liquidated and ascertained damages, and not as a penalty. The plaintiff left the defendant and started a fencing school of his own within the prohibited limits, and on his suing for arrears of salary, the defendant counter-claimed for £1,000 as payable upon breach of the clause against competition.


HAD the sum mentioned in the agreement in Clarke v. J1 ’Turk been reserved solely upon a breach of the clause against competition, it seems clear that it could have been recovered as liquidated damages. In respect of a breach of a stipulation the damages upon which are of an uncertain amount, there is nothing illegal or unreasonable in the parties, by their mutual aglreement, settling the amount of damages at any sum upon w ich they may agree (per TINDAL, O..T., in Kamble v. Farran) ; and for a breach of a stipulation against competition in trade, the parties may consequently fix the damages at £1,000 or any other sum they choose. With this rule we do not suppose Mr. Justice BIGIIAM intended at all to interfere. But in spite of the sound principle laid down by Jnssnn, M.R., in Wallis v. Smitla (21 Oh. D., p. 266), that the courts of law ought not to overrule any clearly-expressed intention on the ground that the judges know the business of the parties better than the parties know it themselves, certain exceptions have been allowed, and one is that where the same sum is reserved as damages for the breach of several stipulations of varying degrees of importance, such sum is to be treated as a penalty. As to the extent to which the stipulations must vary, the cases difier. It would seem from Wall2'e v. Smillz that for the sum named to be turned into a penalty, some of the stipulations upon a breach of which it is made payable must be of only trivial importance. So in Lord Elphinatona v. Jllon/l-laml Iron Co. (11 App. Cas., at p. 842) Lord WATSON speaks of “events, some of which may occasion serious, and others but trifling, damage.” But in lV-fllson v. lava Lord Esmm, M.R., interpreted these words as equivalent to “ some of which may occasion serious, and others less serious, damage,” and according to this last case the sum mentioned is to be treated as a penalty wherever there is a


substantial difference between the various stipulations. Thcro ti

a single sum of £3 was reserved as an additional rent for every ton of hay or straw sold away from the demised premises, and since there was a difference of 4s. or 5s. per ton in the manurable value of hay and straw, it was held that the damages for breach of either part of the stipulation were substantially different, and hence the additional rent was a penalty. Probably a similar difference existed between the stipulations contained in the agreement in Clarke v. 1lI’Turl.". The easiest way of escaping from liquidated damages is to find a stipulation involving the payment of a fixed sum less than the amount of the damages. \Vhether this occurs by itself or as one of a bundle of stipulations, it at once turns the damages into a penalty (Walle'a v. Smith, 21 O. D. 256). But in drawing an agreement it is perfectly safe to insert a sumas liquidated damages, provided it applies only to the breach of a single stipulation the damages upon which are in their nature not ascertainable.


Wirnoor calling in question the principle involved in the constitution of a real representative, some remarks with regard to a few of the difficulties arising on Part I. of the Land Transfer Act, 1897, which comes in force after the 31st of December next, may be of service to the practitioner.

We must confess to a feeling of great surprise that a reform involving such far-reaching results, and affecting the general law as well as the practice at the Land Registry, was not effected in a form less open to grave objections and doubts than that embodied in the Act of this year.

Because no objection was taken to the form of the corresponding clauses in the Land Transfer Bill of 1895 in the Select Committee of the House of Commons of that year, it seems to have been considered that the clauses might be left to take care of themselves. It will be observed, however, that the expert witnesses who were examined before that committee confined their attention to the practical working of the register, and at most gave a general assent to the principle underlying these clauses.

The sections in the Act of this year relating to the real representative have been taken, almost verbatim, from clauses 72 and 74 of the Bill of 1888. At that time it was pro osed to assimilate the devolution of the beneficial interest in land on death to that of personal estate. In the Act of 1897, however, the beneficial rights of the heir-at-law are, it seems, intended to remain unchanged.

Now, it may be fairly predicted that many of the difficulties to which these sections give rise would never have appeared had this change in policy been borne in mind, and the use of scissors and paste had been tempered with a little more discretion. '

The marginal note to section 1, “ Devolution of lqqal interest in real estate on death ” had, when used in the Bill of 1888, some meaning, inasmuch as the next clause related to the “ succession to banqicial interest in real estate on intestacy," but the note is now merely misleading.

Again, there might be some excuse for making real estate vest in the personal representative, when the beneficial interest was, on an intestacy, to devolve as personalty.

We must not, however, be understood as impeaching the decision to leave to the heir his beneficial rights; we have reason to believe that the cases where injustice is done by permitting the heir to take are now very rare, whereas the inconvenience of splitting up the real estate between the statutory next-of-kin, particularly where the property is not ripe for sale, is obvious ; at the same time it must be admitted that the creation of a real representative smooths away the principal difficulties.

Next, to consider the construction of the Act, section 1 (1) is as follows:

[merged small][ocr errors]
[ocr errors]

. J .


Contingent 1ntarests.—“Where real estate is vested.” This expression is ambiguous ; can a contingent interest in real estate be said to be wsterl in anyone? (See Challis, 2nd ed.,

. 64 at seg.). Suppose the condition which must be fulfilled before A. takes an estate in fee is fulfilled after A.’s death, does the land pass to A.’s personal representatives? But see Goodeve, R. P. 4th ed. p. 240 note (0).

Estates tail or for life. An estate tail and an estate for life may be said to be vested in a person so that on the death of a tenant in tail or for life the fee simple may, under the section, pass to the personal representative. This may be a very desirable reform if properly carried out, as, for instance, in the Conveyancing Bill put forward by the Incorporated Law Society during last session, but the absence of any proper machinery to give effect to it points irresistibly to the conclusion that it could not have been intended.

Moreover, the words, “notwithstanding any testamentary disposition,” might lead one to suppose that the section was directed only to those cases where the deceased had power to dispose of the real estate by will, but if the construction placed by the Court of Appeal on a similar phrase (see Ra Scott and At1:aras’s Contract, 1895, 2 Ch. at pp. 611-612) is followed, these words must not be taken as cutting down the scope of the section.

Remaz'mi'erman.—Again, where an estate in remainder is vested, does the estate in remainder pass on the death of the remainderman ‘P

It-ust and J[0rt_/]!l_qe Estatas.—In the Bill as originally drawn, section 30 of the Conveyancing and Law of Property Act, 1881, was to be repealed. This was, we think, rightly struck out, particularly having regard to the fact that this Act does not apply to the equitable interest in copyholds, but room for doubt is still left as to whether such trust and mortgage estates as are “ real estate which is vested in a person without a right of any other person to take by survivorship,” do not in fact devolve under this section. If they do, then the absence of any provision making the personal representatives heirs and assigns within the meaning of trusts and powers, will—for instance, where a power of sale is given to A. (a trustee) and his heirs, and A. dies—render it necessary either to appoint a new trustee or to join the heir of A. with his personal representatives in order to make atitle; the power in fact would not devolve on them though the estate did (see R0 Jl/[orton Ilallett, l5 Ch. D. 143.)

Right of sun-z'rorslu'p.—The words “without a right in any other person to take by survivorship ” prevent the estate of a joint tenant or a tenant by entireties from passing to the personal re resentative, but can have no bearing on the question as to whether life estates or estates tail are affected by the section.

Settled land which is registered.--On the death of a tenant for life of land which is registered in his name after 1897 (see section 6 (8) of the Land Transfer Act, 1897), and assuming that unregistered land does not pass on the death of a tenant for life under section 1, then nothing passes to his personal representatives. Where, however, the land is registered in his name before 1898, it is not clear what will happen.

It may be that (see Land Transfer Act, 1875, ss. 7 and 8) the fee simple is, on registration with an absolute or possessory title, vested, in this case, in the tenant for life, subject to the incumbrances, if any, paramount to the settlement; the rights of remaindermen and other persons claiming under the settlement being left to take effect as mere unregistered equities. If this is so, then the fee simple will, on the death of the tenant for life, vest in his personal representatives, who will, if required, transfer, by the direction of the trustees of the settlement, to the person next entitled, and he will accordingly be registered, with or without restrictions, as the state of the title may require. An actual transfer or conveyance, except to get in the legal estape, will not, however, be necessary (see Land Transfer Act, 189 , s. 6 (4)).

The question, however, seems to depend on whether section 6 (8) does or does not operate to divest the fee, if any, acquired by a tenant for life before 1898. Possibly, with a view to create uniformity of practice, that sub-section, though it con

tains no express provision as to divesting, may be held to have that effect, subject, of course, to any intermediate dealings by the heir or devisee of the tenant for life.


Suflicient has now been said with reference to the first subsection of the new Act to shew that, even in everyday matters. doubts must necessarily arise which cannot well be disposed of without the assistance of the courts. Even viewed from the standpoint of registration, the sub-section is far from faultless, and we confidently submit that the interests of registration have not been well served by rendering it impossible for practitioners to advise definitely on really elementary points of the general law.

Now to consider sub-section 4, which runs thus :

“ (4) The expression ‘ real estate ’ in this part of this Act shall not be deemed to include land of copyhold tenure or customary freehold in any case in whi<-h an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tcnant."

This, it will be observed, is the only definition of “ real estate,” and it is a negative one.

We raise no objection to the exclusion of copyholds ; that seems to be in accordance with the present policy of the law, with a view to encourage enfranchisement; and we venture to think that copyholders will be well pleased, at any rate for the present, with the exclusion. But what is the meaning of “ real estate ”?

Estate pur autra vz'a.—-An estate for the life of another person. where the heir is special occupant, is not strictly “real estate," so that it may still pass to the heir or devisee, except where it is a trust or mortgage estate.

Riglet of re-entry/.—Whether a right of re-entry for condition broken or otherwise, and the interest under a covenant to invest money in the purchase of land, are within the section, must at least be doubtful.

Personal tnhor-ztance.—-Where, for instance, an annuity is limited to A. and his heirs, this is a hereditament within section 30 of the Conveyancing and Law of Property Act, 1881, but, though it ought to be made to pass to the real representative, it clearly does not.

Clzattels roal.—As “ real estate ” is to vest as if it were a chattel real, it seems that the expression cannot here include chattels real. These devolve, therefore, on the personal representative under the existing law.

We may now proceed to consider the section as a whole.

lt will be a matter for surprise that, although Part I. of the Act is headed “Establishment of a Real Representative,” the section does not even enable the appointment of one, but makes the personal representative in that character real representative, and constitutes him real representative where there is no personalty, and where he cannot properly be personal representative : see Re Parker’: Ykusts (1894, l Oh. 707, 722); also Roll v. Osborne (Hobart’s Reports, 3rd ed., p. 25).

One result is that there cannot be a real representative apart from the personal representative. This is most inconvenient. Thus a testator may wish to leave all his personal estate to his wife and a point her executrix, and to leave his land to trustees on trust. ‘lie cannot make his wife executrix without vesting the land in her, and he cannot vest the land in the trustees without making them joint executors with his wife.

Another result is that, when real representatives convey, and proper covenants for title are to be implied, the real representatives will have to convey as personal representatives ; surely the executors of the real estate should in that character have been called real representatives and should have been enabled to convey as such?

It may be taken, then, that the operation of this section is so obscure, except perhaps where a person dies who was solely entitled to freehold land for an estate in fee simple in possession, that the profession may, it is hoped, look forward with some confidence to its repeal and re-enactment in an improved form at an early date.

Jumping to conclusions, says the Globe, is a mischievous habit. A little while ago a certain case in which Irish bacon-curers were interested were adjourned nine die in consequence of the illness of counsel. Some Irishmen present, linking “ illness ” and “ die,” at once telegraphed to Belfast that the counsel was dead. Yesterday the counsel, in app ying for a new hearing, had to explain that he was not dead ; which must always be an embarrassin thing to do. The incident recalls the Indian barrister who threatened t at he would nowprocecd to “expose the cm bone in all its


naked horror.”

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

8}, Angel-court, Throgmorton-street, London, E.C.,
2nd November, 1897.

Sir,—In July, 1897, the Canadian Minister oi Customs made regulations under the Customs Tarifl‘, 1897. That :

Persons entering goods under the Canadian Reciprocal Tariff of 1897 should furnish an invoice of the articles, with a declaration annexed thereto from the exporter made before a commissioner for

taking oaths, and among others the secretary of a chamber of commerce,as to origin and value of the articles in the form then prescribed, which form states the declaration is to be “ subscribed and declared” in the usual way.

I drew the attention of the Commissioner of Customs to the fact that declarations in this country can only be made before notaries, justices of the peace, and commissioners for oaths, properly appointed, and that treasurers and secretaries of a chamber of commerce were not as such so authorized.

I learn now that the High Commissioner of Canada has received a telegraphic intimation from the Minister of Customs that exporters may make declarations of the origin of goods before any witness, suc as an employee of the exporter.

I submit that the Canadian authorities have no right to authorize “ any witness " to take declarations in this country, even when such are to be acted upon in Canada.

If a declaration be required upon which perjury could be assigned, then the same ought only to be made before a proper oflicer duly authorized. If a certificate under hand only is to suflice, then the document should not be " declared, &c.”

I think this is of sufiicient importance for the proper department of the Colonial Ofiice to inquire into and take the necessary steps to



[ocr errors]

protect those ofl‘-icers who are legally authorized to take declarations.
—I am, sir, your obedient servant,
(Sd.) GEO. L. WINGATE, Solicitor and Commissioner for Oaths.
To The Right Hon. Joseph Chamberlain, M.P., H.M. Secretary of
State for the Colonies, Downing-street, S.W.

Downing-street, 11th November, 1897.

Sir,—I am directed by Mr. Secretary Chamberlain to acknowledge the receipt of your letter of the 2nd inst. in which you call attention to the fact that the regulations made by the Canadian Minister of Customs under the Dominion Tariff Law, 1897, allow declarations of origin to be made before persons other than notaries, justices of the peace, and commissioners for oaths.

In reply, I am to inform you that the matter is one in which Mr. Chamberlain is unable to interfere, as the Dominion Government must be allowed to exercise its own discretion as to the nature of the regulations which it may consider necessary for securing the proper observance of the provisions of the Tarifi’ Law.—I am, sir, your obedient servant, (Sd.)Jon1v Bamsron.

G. L. Wingate, Esq.

[graphic][merged small]

Sir,-Knowing the great interest which you take in all matters legal, I should like to draw your attention to a case which in my experience is absolutely unique in the attestation of legal documents.

Readers of your able journal are well aware of the care which is always exercised by solicitors and their clerks, when sending documents by post to their clients, to explain fully what is necessary to be doneto perfect the execution of the deed.

A conveyance has recently come into my possession, and the attesting witness to the grantor’s execution is a lady. She was doubtless instructed to “ sign her name and add her address and tlescription. ” in an indicated spot. The name and address apparently gave the lady-' witness no trouble—any member of the fair sex can write her name and address.

But the description I That must have puzzled her. “ Ooznplexion fair, eyes blue, hair dark brown ” are the words by which the bewildered lady described herself in the deed of conveyance!

Curiously enough she did not add her age—-that was evidently indescribable in one of the fair sex. CHARLES J. FOX.

7, Gt. St. Thomas Apostle, E.C., Nov. 17.

[graphic][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
« PreviousContinue »