Page images
PDF
EPUB

been issued by the Home Secretary, and which confine within narrow limits the time during which any belligerent ship can remain in a British port and the supplies which she can obtain, and also require an interval of twenty-four hours to elapse between the departure from the same port of ships of opposite sides. It is interesting to note that the United States, in whose favour the rules were originally conceded, have had to suffer for them at the outset of the war by the probably permanent detention in Falmouth Harbour of the torpedo-boat Somers.

pal regulation the United States have, historically speaking, the advantage. A hundred years ago they attempted to put a stop to the practice of European nations enlisting men and equipping vessels in their ports for the purposes of European war, and by an Act of Congress of 1794, revised and re-enacted in 1818, it was declared to be a misdemeanour for any citizen of the United States within the territory or jurisdiction thereof to enlist soldiers or seamen, or fit out any ship, or augment the force of any ship of war, for the purpose of hostilities with a state with which the United States were at peace. But the declaring of these principles was a different matter from securing their observance, and in the first half of the century Spain THE QUESTION Whether or not the Preferential Payments in had frequent occasion to complain of the fitting out in the Bankruptcy Amendment Act, 1897, is retrospective in its operaUnited States of privateers and expeditions aimed at her com- tion, came before the courts for decision in two different cases merce or territory. The most noticeable instance was the exlast week. Section 2 of the Act, in effect, gives priority in the pedition fitted out by LOPEZ against Cuba in 1849, with the winding up of any company under the Companies Acts to the object of annexing the island to the United States. LOPEZ was debts mentioned in section 1 of the Preferential Payments in twice prosecuted by the United States Government, but no conBankruptcy Act, 1888, over the claims of holders of debentures viction was secured, and his punishment was left for the or debenture stock under any floating charge created by such Spaniards, who executed him at Havana on the failure of his company, but only in so far as the assets of the company availsecond expedition in 1851. In England the earliest authority able for the payment of all general creditors may be insufficient upon foreign enlistment seems to be the case referred to in to meet such debts. The debts specified in section 1 of the Act Fortescue's Reports, p. 388. In 1721 the judges were ordered of 1888 comprise parochial and local rates, taxes, land tax, to attend the House of Lords to advise upon a complaint made property or income tax, the wages or salary of any clerk or by Sweden that ships had been built and sold to the Czar; and servant, and of any labourer or workman, due from the bankrupt they gave it as their opinion that the king had by law no power to or company in respect of certain periods prior to the bankruptcy prohibit the building of ships of war or of great force for foreigners or winding up. The Act of 1897 received the Royal Assent in any of his Majesty's dominions. Acts for the purpose of on the 15th of July, 1897, but it does not contain any propreventing the enlistment of British subjects for service abroad vision fixing a date on which it is to come into operation. were passed in 1736 (9 Geo. 2, c. 30) and 1756 (29 Geo. 2, c. 17), In each of the cases above referred to the winding-up had combut the first proper Foreign Enlistment Act was 59 Geo. 3, c. menced, and the debenture-holders' action had been brought, 69, which followed by a year the present statute of the United before the 15th of July, 1897. The first case was that of Re States. Its provisions have been carried further by the Act of The Waverley Typewriter (Limited), which came before WRIGHT, 1870, and in particular an embargo is now placed upon the J., in the Companies (Winding-up) Court, upon a claim by some building of ships in this country for the use of foreign belli-workmen, to whom the company was indebted, for the prefergerents. Thus section 8 provides that it is an offence against ential payment of moneys due to them in respect of wages. the Act for any person within the Queen's dominions, without WRIGHT, J., decided that the Act of 1897 was not retrospective the licence of the Queen, to build or agree to build or cause to in operation, and disallowed the claim. In his opinion the Act be built any ship, with intent or knowledge or having reasonof 1897 formed part of the Act of 1888, which in terms only able cause to believe that she will be employed in the military applied where a winding up had commenced after the comor naval service of any foreign state at war with any friendly mencement of the Act. In the subsequent case of Weekes v. The Kent, Sussex, and General Land Society (Limited) (reported elsewhere) before KEKEWICH, J., the Commissioners of Inland Revenue raised a claim for the preferential payment of a year's income tax due to them from the company. Counsel for the company referred to Re The Waverley Typewriter (Limited), and KEKEWICH, J., without expressing any opinion on the point, followed the decision of WRIGHT, J., and held that as the Act was not retrospective, that the claim failed, and that the Crown must pay the costs of the summons. In deciding as he did, WRIGHT, J., followed the principle discussed by Sir GEORGE JESSEL in Re Joseph Suche & Co. (24 W. R. 184) — namely, that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect these rights, except in so far as such enactments relate merely to procedure. By the Act of 1897, which did not come within the exception, the Legislature had interfered with the rights of debenture-holders if they had not taken steps to realize their securities before the passing of the Act, but it had not gone so far as to interfere with their rights when they had already taken those steps.

state.

AS BETWEEN Great Britain and the United States the conduct of the former on the present occasion is governed by the rules annexed to Article VI. of the Treaty of Washington, which, briefly stated, provides as follows: A neutral Government is bound (1) to use due diligence to prevent the fitting out within its jurisdiction of any vessel which it has reasonable ground to believe is intended to carry on war against a Power with which it is at peace, and also to use the like diligence to prevent the departure from its jurisdiction of any vessel intended to carry on war, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use; (2) not to permit either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of recruiting or of renewing or augmenting military supplies; and (3) to exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing duties. These rules form a curious instance of ex post facto legislation. They were formulated by the United States with a view to stating the principles of international law on the subject of foreign enlistment at the date when The Alabama was allowed to be equipped in England. The British Government refused to admit that the rules were any part of international law, but in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, it was agreed that the Alabama Arbitration should be conducted on the assumption that the rules had been previously in existence, and also that the two countries should observe the rules as between themselves in the future. The rules themselves are expressed in general terms, and the practical application of them, so far as concerns the use by foreign belligerents of the ports and harbours of the British Empire, is contained in the regulations which have

THE HEAVY loss usually inflicted upon the owner of a publichouse by the refusal of justices to renew its licence makes every decision of the courts as to the powers of justices to so refuse of peculiar interest. The latest of such cases is Baxter v. Leche (ante, p. 430), which was a special case stated by the Court of Quarter Sessions for Cheshire, on an appeal against the refusal of justices at an adjourned annual licensing meeting to renew the appellant's licence. The general annual meeting was held on the 31st of August, and no notice was given to the appellant requiring her to attend, or of any intention to oppose the renewal. At the meeting, however, some of the jusfices of themselves started an objection to the renewal, and accordingly, by

their instructions, their clerk, on the 3rd of September, served the appellant with a notice, " on behalf of the licensing justices," requiring her to attend at the adjourned meeting to be held on the 28th of September. No other objection was made at the annual meeting. On the 20th of September certain persons, not justices, served upon the appellant notice of their intention to oppose the renewal of her licence on certain grounds stated therein. The appellant and her solicitor appeared at the adjourned meeting and objected to the validity of the notices. The renewal, however, was refused; the refusal was upheld by quarter sessions, and the Divisional Court has confirmed the decision of quarter sessions. Now, section 42 of the Licensing Act, 1872, after providing that a licence-holder need not attend in person at the annual meeting unless he is required, and that no objection shall be entertained unless written notice thereof has been served upon him not less than seven days before the meeting, contains a proviso "that the licensing justices may, notwithstanding that no notice has been given, on an objection being made, adjourn the granting of any licence to a future day, and require the attendance of the holder of the licence on such day, when the case will be heard and the objection considered, as if notice hereinbefore prescribed had been given." It was held in Daykin v. Parker (42 W. R. 625; 1894, 2 Q B. 273) that an objection made openly at the annual licensing meeting is a good objection made," although the nature of the objection is not stated at the time by the objector, and that, upon such an objection being made, the justices have power to postpone the consideration of an objection to an adjourned meeting. Still it seems clear that the objection considered at the adjourned meeting was the objection raised at the annual meeting, and that the objector was the same person. It appears also that the Act contemplates only "the objection" made at the annual meeting being considered at the adjourned meeting. In Baxter v. Leche, however, the notice of the 20th of September seems to have been given by persons who had raised no objection at all at the annual meeting. If, therefore, this decision stands, the fact that if, for an objection started by one of their own body, justices adjourn an application for a renewal, the case is opened to the whole world, and anyone who serves due notice before the adjourned meeting has power to oppose the renewal. Leave to appeal was given by the Divisional Court, and, as this is a serious matter for licence-holders, probably the question will be heard of again.

THE LAND TRANSFER RULES.

66

THE draft of the rules made under the Land Transfer Acts, 1875 and 1897, has been issued, but the publishers have, we understand, been directed for the present not to issue any further copies to the public. This direction, we apprehend, has been probably given with a view to the correction of certain clerical and other errore, which may have been discovered in the draft. Our subsequent remarks are consequently subject to such modification as may result from the alteration of the draft now before

us.

There are 270 rules and two schedules; the first schedule containing sixty forms, and the second the provisions respecting the remuneration of solicitors; the whole draft occupying sixty-two pages of folio. When we consider that the Act of 1875 contains 127 sections, which cover 32 pages in the Law Reports, and that the Act of 1897 contains 26 sections and covers 15 pages in the Law Reports, we may be able to form some slight conception of the vast mass of statutory provisions which have been thought necessary in order to constitute a system of registration of title.

Within the very short time at our disposal since the draft was received, it is impossible to form a proper judgment of the labours of the Rule Committee, but it is hoped that the following criticisms may be of some service, more particularly as the draft does not appear to have been finally settled. They must be taken as first impressions only.

(1) Tenant by the curtesy.-By rule 7 it is provided that the Charges Register shall contain incumbrances, including notices of estates by the curtesy. Rule 161 provides that an application

to register the estate by the curtesy shall be in form 44 in the First Schedule. Though it may have been right in 1875 to provide (see section 52) that an estate by the curtesy should be registered as an incumbrance, this in effect appears to have been repealed by the Act of 1897, s. 6 (1) (10), under which a tenant for life within the meaning of the Settled Land Acts may at his option register settled land in his own name. Now, under the Settled Land Act, 1882, s. 58 (viii.), a tenant by the curtesy who is in possession or entitled to the receipt of the rents and profits (Bates v. Kesterton, 1896, 1 Ch. 159, 164) is a person having the powers of a tenant for life. It is almost inconceivable to suppose that a person having powers under section 58 is not a tenant for life within the Land Transfer Act, 1897, s. 6, hence it follows that an estate by the curtesy should at any rate only be capable of registration as an incumbrance where it is not an estate in possession.

(2) Right of consolidation.-Rule 112 is as follows:

"Where a charge, whether affecting the whole or a part of the land comprised in a title, reserves the right to consolidate, it shall not on that account be registered against any other land than that expressly described in it." In so far as this rule recognizes that the former practice at the Land Registry, which prevented any such right being reserved, is to be discontinued, the rule is in the right direction, but it seems to throw considerable doubt as to the manner in which the right of consoli dation is to be enforced. It is conceived that the intention is that the mere reservation of the right is not to operate unless something is done by the chargee to exercise the right, but this we submit is by no means clear.

where, on the grant of probate to A., the right to come in and (3) Registration of executor without probale.-Under rule 126, prove is reserved to B, then, if B. states in writing that he registrar is bound to register him as joint proprietor with A. has accepted the executorship and desires to be registered, the before B. has proved the will. No doubt such an extraordinary provision must have engaged the serious attention of the Rule Committee, but at first sight it is not obvious what benefit can accrue by it, while serious inconvenience might be caused if B. were to die before he took out probate. At any rate, probate should be produced to the registrar within a limited time from the application for registration.

practice of referring to other rules by number has been adopted. (4) Cross-references.-Throughout the rules we find the dubious In cases of hurried alterations this may lead to considerable error, and even now it will be observed that in rules 246 and 247 rule 151 has been referred to when clearly 152 is intended. (5) Value of registered land.-In form No. 1 and in other forms it will be observed that a declaration as to the value of the land is to be made; presumably in order to enable the ad valorem fees to be assessed and to afford information to persons lending on the security of the land. It appears, however, to have escaped attention that the land may be subject or not to incumbrances; at any rate it should be stated whether in the valuation regard is to be had to incumbrances, and further, it might be well to define the classes of incumbrances, if any, which ought to be taken into account.

(6) Restriction where tenant for life is registered as proprietor, and there are trustees of the settlement. The restriction contained in form 5 in the First Schedule appears to go too far, inasmuch as it would prevent any mortgage from being made under the Settled Land Act, 1882, s. 5, or the Settled Land Act, 1890, s. 11, without an order. It may be that the Land Transfer Acts do in some respects fetter the powers conferred by the Settled Land Acts, and in so far as this is the case we think that constitutes a serious objection to the machinery of the first-named Acts. In the present case, however, we submit that the restriction is unnecessarily onerous. Thus if it were provided that—

Until further order, no transfer or charge of the land is to be made unless the consideration money is paid to A. B. of &c., and C. D. of &c. [the trustees of the settlement] or into court

-the effect of the Settled Land Acts would be preserved and ample protection would be secured that no improper disposition was made.

Where the tenant for life has a power to charge for his own benefit an exception might be introduced into the restriction,

though there would not be much harm if in this case the money | It is certain, however, that there is no lack of eminent authorwas paid in the first instance to the trustees, who would be ities who have no such mistrust of the proposed change, and for bound to pay it over to the tenant for life. practical purposes the matter has to be decided not by balancing against each other the views of individual judges or lawyers, but by broad considerations of what course is most calculated to further the interests of justice.

(7) Transfers to the uses of a settlement. In forms 15 and 17 it will be observed that it is contemplated that where registered land is conveyed to the uses of a settlement, the Settled Land Act trustees may be registered as proprietors. Now, we submit that this is clearly improper. The Settled Land Act trustees as such have no power of sale, though trustees with a power of sale are trustees for the purposes of the Acts. If any rule made under the Land Transfer Acts can be ultra vires, we submit that this is, for on reference to the Land Transfer Act, 1897, s. 6 (1), it will be found that although the tenant for life may at his option register the land in his own name or in the names of trustees with a power of sale, he has no power to register it in the names of trustees for the purposes of the Acts unless they have a power of sale. It is true that the trustees have during the minority of a tenant for life in possession a power to sell the land on his behalf, but to this extent only are they trustees with a power of sale. We submit, then, that forms 15 and 17 should be made to apply to trustees with a power of sale, which would include trustees for the purposes of the Act during a minority.

We may, perhaps, without disrespect, be permitted to congratulate the very able committee on the success which, on further perusal of the rules, we conceive it will be generally admitted they have attained. The attention to detail, which is one of the most favourable features of the rules, must, however, of necessity give rise to many mistakes.

THE CRIMINAL EVIDENCE BILL. THE Criminal Evidence Bill has been read a second time in the House of Commons by a majority of 229 to 80. Ordinarily this would be a sufficient indication that the weight of opinion is overwhelmingly in favour of the proposed change, but it is to be noticed that a year ago the numbers were 210 to 41, and that the present debate produced a series of strongly adverse speeches. It was wound up by an appeal from Mr. MORLEY that the Bill, if read a second time, should be referred to a select committee, and it may be taken for granted that if the request were acceded to there would be an end of the measure for this

year.

But though there is on the present occasion a greater show of opposition to the admission of the competency of prisoners as witnesses than formerly, the actual arguments advanced against the Bill have not increased in cogency. The circumstance of most importance-to judge from the frequent references to it is that Mr. Justice HAWKINS is alleged to have changed his view in the course of the past year, and, according to Mr. ATHERLEY-JONES, he has come to a positive conclusion that the measure would be detrimental to the interests of justice. And Mr. LYTTELTON quoted from a written opinion of Lord Justice COLLINS, in which that learned judge stated as his chief objection to the proposed change that he felt certain it would greatly alter the present relations between the judge and the prisoner. "It seems to me," he wrote, "inevitable that, if it should become the practice for the prisoner to give evidence in every case, the judge will in most cases have to put questions in the nature of cross-examination himself. He has to do so now very frequently in cases under the Criminal Law Amendment Act. Counsel who conduct ordinary prosecutions are frequently inexperienced, and a crucial question often has to be put by the judge. If this becomes the ordinary practice, as I think it must if the proposed change is made, it must sap the prisoner's confidence in the absolute impartiality of the judge, which is so valuable a feature in our present system. It cannot but tend to alter the attitude of the judge himself actually and apparently; and I should regard this as a great public mischief and deprecate any change which might make it possible unless I feel sure that the certain benefits would more than compensate." Opinions such as these are, of course, entitled to every respect, and it may be that experts in the administration of the criminal law are not so unanimous on the subject as has sometimes been represented.

The most noteworthy statute under which the_testimony of prisoners is at present admitted is the Criminal Law Amendment Act, 1885, and the argument is a perfectly fair one that either the competency of prisoners must be made universal or abolished. Much is said by the opponents of the Bill about securing respect for the administration of the law and upholding the high standard to which it has attained. But there can be no respect for a system of law which is inherently absurd, and a law which makes the evidence of a prisoner admissible or not according to the form in which the indictment is drawn, is obviously open to this charge. The resistance to the Bill would have more substance had there ever been an outcry for the repeal of the evidence clause (section 20) of the Act of 1885. The operation of the Act has, indeed, not been allowed to go without question. Sir HERBERT STEPHEN has said that twelve years' observation of its working has convinced him that an innocent person is not less but more likely to be convicted if he can be heard as a witness for himself than if he cannot, and he has put this opinion in concrete form by alleging that upon the Northern Circuit three or four innocent persons are on an average convicted every year because they have given evidence, when they would have been acquitted if they had been incompetent as witnesses. The Attorney-General replies that the Home Office knows nothing of any such cases; and he asserted in the debate that, if they had existed, they would certainly have been brought to the notice of the department by the prisoner or his friends, an assertion which drew from Mr. HEALY the fair retort that prisoners who had been convicted on their own evidence were not likely to make this circumstance the ground of an application to the Home Office. But the discussion is profitless. The significant fact is that the system introduced by the Criminal Law Amendment Act has been for a considerable time in operation and has produced no general protest on the part of the judges who have to administer it. The Attorney-General referred with some effect to the similar procedure under the Explosives Act, 1883, and to a case under it within his own experience where one of several prisoners was able to show by giving evidence himself that he was the dupe of the other prisoners, with the result that he obtained an acquittal. The above and other similar enactments it would be very difficult to repeal, and yet, while they remain unrepealed. it is still more difficult to continue the exclusion of the evidence of prisoners in cases outside them.

The strength of the case for the opposition to the Bill lies in the fear that the giving of evidence will expose innocent prisoners who are uneducated men or who have a bad record to positive disadvantage. But the mode in which the objection is stated does no great credit to the present practices of courts of justice. The House, said Mr. LYTTELTON, was legislating "for the poor, the miserable, the ignorant, the confused, almost the dumb, who were driven into a criminal court, and, who, probably for the first time in their lives, endeavoured to string together a few sentences against more or less skilled opponents." With this must be taken the assertion of another opponent of the Bill that prosecuting counsel of the present day have forgotten their true function, and instead of conducting the prosecution in a semi-judicial capacity, bend their energies to obtaining a verdict. But if these remarks represent truly the atmosphere of a court of justice the character for impartiality and fair play which the opponents of the Bill are so anxious to maintain has

already ceased to exist. We greatly doubt, however, whether the conflict between prosecuting counsel and prisoner, when the prisoner goes into the witness-box, will have the disastrous result that has been predicted. An accused person may tell lies and may thus shake his own credit and secure his conviction. But this will be because he has some ulterior end in view, and not because he is unable to tell his story. He may, if very ignorant or nervous, have difficulty in telling a connected story, but English judges would not deserve the credit for patience, fairness, and

CORRESPONDENCE.

THE FINAL EXAMINATION.

common sense universally accorded to them if they could not secure that the prisoner shall convey to the jury the facts as he intends them to be presented. The prisoner knows the facts, and, if he MR. WARR'S BILL FOR EXEMPTING GRADUATES FROM is innocent, his desire is to tell the facts truthfully. With the assistance of the judge there is no reason why even the most uneducated prisoner should not be able to do so. To represent that the judge will allow him to be driven by the prosecuting counsel into untruths is to depreciate the influence of the judge and to exaggerate the importance of cross-examination. The weapon of cross-examination, as Sir ROBERT REID well said, falls flat and useless against a truthful witness. Honesty entirely blunts the edge of it.

There is, indeed, no reason to suppose that the admission of the testimony of prisoners will so far alter the atmosphere of an English court of justice as to make an ignorant prisoner an easy prey for the prosecuting counsel or to turn the judge into an adversary. And if judge and counsel so far forgot their proper attitude to the prisoner, account would still have to be taken of the jury, who would resent any attempt to convert the examination of the prisoner into an engine of oppression. A more serious question arises upon the extent to which the crossexamination of the prisoner is to be admitted. Is it to be confined to the charge made against the prisoner, or is he to be subject to the ordinary rule governing the cross-examination of a witness as to credit and to be liable to have his past life with any previous convictions on similar charges brought up against him? Sir HERBERT STEPHEN, in his "Prisoners on Oath," has given good reason, if the evidence of prisoners is to be permitted, for restricting the power of cross-examination to the circumstances of the charge on which the prisoner is being tried. When the prisoner is in the witness-box the two principles that, as prisoner, he is entitled to have all extraneous matter excluded, and that, as witness, he is liable to be questioned as to his antecedents are necessarily at variance; and the more important principle to maintain is the former. By the fact of his being under arrest the credit of the prisoner is already to some extent discounted; he is to use Mr. CARSON's phrase-a tarnished witness; and the jury can estimate his evidence at his proper value without having the whole story of his past misdeeds before them. On the other hand, it is essential that they should decide the immediate charge on the relevant evidence, and should not be influenced by considerations of probability drawn from previous convictions. This accordingly is what the Bill proposes. The prisoner cannot be cross-examined with a view to shewing that he has been previously convicted or is of bad character, unless the previous conviction would be admissible evidence of the offence for which he is being tried, or he has himself given evidence of good character, or he has given evidence against any other person charged with the same offence. In this last case he is, as against such other person, merely a witness, and is under an ordinary witness's liability. The Bill carries out as closely as possible the principle stated by the Attorney-General in his speech, that, according to the law of England, the offence for which a man is tried is the offence with which he is being charged, and not any other Doubtless

offence.

[To the Editor of the Solicitors' Journal.] ranks of our profession, and so raise its tone, I venture to suggest Sir,-If the object of this Bill is to attract university men to the what I think would be a far more effective method of attaining the latter object-namely, to procure legislation to put a check on the admission of the "ten years' man," or, in other words, to compel him to pass his preliminary before allowing him to be articled. "It is the presence in our midst of the man who is unable to get through an examination which no educated gentleman would at any time of and in large provincial towns I fancy he is not so much noticed, but his life have difficulty in passing, that tells against us. In London in the average-sized country towns he is very much in evidence, and however efficient his work, however accurate his technical knowledge, his social position is not what that of a member of our honourable profession should be.

My view of Mr. Warr's Bill, based on my personal experience, is, that it will work more harm than good. I worked hard for my university degree, and when I passed my examination I felt I had learnt something of the theory of many branches of law; but I should Solicitors' Final, assisted and exemplified as it was by the practical be extremely sorry to have missed the compulsory reading for the work seen in the office and the courts; and I feel to this day that it was time well spent.

I thoroughly agree with the correspondent whose letter you quote, that the law examinations at the universities cannot be conducted on LL.B. other than theoretical lines, and ought not to be, either. April 27.

RE BROOKE AND TREMLIN'S CONTRACT.'

[To the Editor of the Solicitors' Journal.] Sir,-Referring to your remarks on the judgment of Kekewich, J., in Re Brooke and Tremlin's Contract, contained in your issue of the gaged freehold property of which she is seised by reason of the 9th of April, as to a married woman being able to convey a mortmortgage money advanced by her having formed part of her separate estate, the crucial point which has to be dealt with in the majority of cases in which the point is raised in actual practice seems to be left untouched. To enable a married woman to convey such mortgaged property, it appears to me that the first essential is that the moneys advanced by her on the mortgage were in fact her separate property, and not the moneys of her husband; and in most of the cases which have come before my personal notice the proof of this has been wanting.

the husband being joined in the mortgage deed for the purpose of his It is a common practice for such mortgages to be prepared without acknowledging that the mortgage money does not belong to him, but is the separate estate of his wife. Now take the instance of a mortgage to a married woman, who advances the mortgage money out of moneys belonging to her husband, either with or without his knowledge, and the husband does not join in the deed for this purpose, what is the result then? This was the actual state of things had, in fact, no money of her own. in a case in which was recently concerned. The married woman Her husband had left her, and she had possessed herself of his money, a part of which she had advanced on the mortgage. There was a statement in the mortgage deed that the money advanced was the separate property of the wife, It was well known that the among the profession the proposed change is but this statement did not make it so. viewed with a certain measure of distrust. This found expres-Women's Property Act would vest the mortgaged property in her in contrary was the fact. Is it contended, then, that the Married sion during the debate in the speeches of Mr. PICKERSGILL, Mr. such a case, so as to enable her to deal with it, as a feme sole? LYTTELTON, Mr. ATHERLEY-JONES, Mr. CARSON, and others. The The only advisable way out of the difficulty, so as to make the gist of the objections, as we have already stated, is that title clear in the hands of a purchaser from her, appears to me to be uneducated prisoners will make bad witnesses, and that judges that the husband should be joined in the mortgage deed, or in the and prosecuting counsel will assume a hostile attitude, with the deed of reconveyance or the conveyance of the mortgaged property result that the character of courts of justice will be lowered. to a purchaser, in order to give the acknowledgment above menThese fears are repudiated by Sir RICHARD WEBSTER, Sir tioned. ROBERT REID, Sir EDWARD CLARKE, and Mr. BUCKNILL, with West Hartlepool, April 22. whom the advocacy of the Bill rested, and we apprehend that they are without foundation. A criminal trial is not in all respects analogous to a civil trial, but in each it is the object of the court to get at the truth. It is only recently that in civil trials the parties have been held competent to give evidence, and so far from the interests of justice being thereby prejudiced the contrary has happened. To exclude the parties would now be treated as a manifest absurdity. It may be anticipated that the impending change in the conduct of criminal trials will be followed by a corresponding change of feeling.

J. T. KAY.

Lord Esher, endeavouring apparently to satisfy himself that a place is not a place when it happens to be a betting-ring, has, says the St. James's Gazette, had varied experiences. Not long ago the crowd at Sandown received him with cheers; last week an obscure member of it picked his pocket at the Old Berkeley Hunt Steeplechases. His lordship does not promptitude shown in similar circumstances by Lord Russell at Epsom, a appear to have been able to collar and convict the culprit with the few years before he became Lord Chief Justice. Consequently, he seems

to have lost his watch for ever.

CASES OF THE WEEK.

Court of Appeal.

LONDON AND NORTH-WESTERN RAILWAY CO. v. DONNELLAN. No. 1. 25th April.

RAILWAY-RATES AND CHARGES-SIDING RENT-"DIFFERENCE" ΤΟ BE DETERMINED BY AN ARBITRATOR - JURISDICTION OF COURT-LONDON AND NORTH-WESTERN RAILWAY Co. (RATES AND CHARGES) ORDER CONFIRMATION ACT, 1891 (54 & 55 VICT. c. CCXXI.), SCHEDULE TO ORDER, s. 5 (IV.). Appeal from the judgment of a Divisional Court (Wright and Darling, JJ.), reversing a decision of the deputy county court judge at Crewe. The action was brought to recover siding rent. In January, 1895, the plaintiffs issued a notice to all their customers, including the defendant, stating that a charge would be made for the accommodation of trucks, when standing on the company's sidings for more than four days, and evidence was given that a charge of 6d. a truck per day beyond the four days was made all over the company's system. The defendant had always refused in toto to pay the charge, telling the company's servants that it was exorbitant and unjust, four days being too few for unloading. In an action to recover this charge for trucks belonging to the defendant which remained on the company's sidings for more than four days, the defendant set up as a defence that the county court judge had no jurisdiction to entertain the action because there was a "difference" arising under section 5 of the schedule to the provisional order scheduled to the London and North-Western Railway Co. (Rates and Charges) Order Confirmation Act, 1891, which must be referred to an arbitrator appointed by the Board of Trade. That section provides that "the company may charge for the services hereunder mentioned, or any of them, when rendered to a trader at his request or for his convenience, a reasonable sum by way of addition to the tonnage rate. Any difference arising under this section shall be determined by an arbitrator to be appointed by the Board of Trade at the instance of either party. Provided that where, before any service is rendered to a trader, he has given notice in writing to the company that he does not require it, the service shall not be deemed to have been rendered at the trader's request or for his convenience. (iv.) The detention of trucks, or the use or occupation of any accommodation before or after conveyance beyond such period as shall be reasonably necessary for enabling the company to deal with the merchandise as carriers thereof, or the consignor or consignee to give or take delivery thereof." The county court judge held that he had no jurisdiction and gave judgment for the defendant. The Divisional Court held that the words of section 5, "any difference arising under this Act," referred to a difference as to the reasonableness of the amount of the charge only, and that, as in this case the defendant disputed the charge in toto, this was not a "difference" within the meaning of section 5, and that therefore the county court judge had jurisdiction. They accordingly gave judgment for the plaintiff for the amount claimed. The defendant appealed and contended that any difference which arose as to this charge 66 difference 99 within section 5, and must be referred to arbitration.

was a

Midland Railway Co. v. Haigh (13 Times L. R. 135), and some unreported

decisions of the Divisional Court were referred to.

THE COURT (A. L. SMITH and CHITTY, L.JJ.) allowed the appeal.

A. L. SMITH, L.J., said that in his opinion the Legislature had enacted that as regards matters within sections 5, 6, 7, and 8 of the Provisional Order disputes should be settled by an arbitrator appointed by the Board of Trade and not be taken into court. In several cases which had been referred to Wright J. seemed to think-and Mathew and Wills, JJ., took the same view-that the reasonableness of the amount of the charge was the only matter for arbitration under section 5. He was unable to agree with that view. "Any difference arising under this section " was not limited to the reasonableness of the amount of the charge. The words included any difference arising under any of the sub-sections of section 5. Under sub-section (i.) the arbitrator might have to determine, if it was in dispute, whether the sidings belonged to the company or not; so under sub-section (ii.) the arbitrator might have to determine whether the services were rendered outside the terminal station; and in sub-section (iv.) in finding out what was a reasonable charge the arbitrator might have to determine what was the period reasonably necessary to take delivery. The arbitrator must settle the whole dispute, and not merely fix the amount, leaving the rest to the court. In the present case there was a "difference arising under" section 5, and the county court judge was right.

It

CHITTY, L.J., Concurred. There were no words in section 5 limiting the "difference" to the reasonableness of the amount of the charge. included all that was material with reference to the various sub-sectionsthat is to say, all matters which were material to the decision of the difference, whatever that difference might be, arising under the section. The Legislature had thought that this was a class of dispute that had better be determined by a skilled arbitrator than by the courts, and never intended that the difference should be split up, part to go before one tribunal and part before another.-COUNSEL, T. W. Chitty and Gilchrist Alexander; C. A. Russell, Q.C., and W. J. Noble. SOLICITORS, George Turnbull, Bradford; C. H. Mason.

[Reported by W. F. BARRY, Barrister-at-Law.]

High Court-Chancery Division.

Re HOCKLEY HALL AND WHATELEY COLLIERIES AND BRICK-
WORKS (LIM.). Byrne, J. 22nd April.
TRUSTEE--CORPORATE TRUSTEE-CORPORATION DISSOLVED-NEW TRUSTEE
APPOINTED-TRUST FOR DEBENTURE-HOLDERS-TRUSTEE ACT, 1893, ss.
26, 26.

In 1892 the above-named collieries issued first mortgage debentures and executed a trust deed, by which certain freehold property was conveyed to one James Balfour, as trustee for the debenture-holders. In 1893 Balfour retired from the trusteeship, and under a power in the trust deed the debenture-holders appointed the General Securities Trust and Agency (Limited) to be a new trustee under the trust deed in the place of the retiring trustee. In 1896 the General Securities Trust and Agency (Limited) went into voluntary liquidation, the final meeting of shareholders was held on the 15th of June, 1897, and a return being made to the registrar of joint-stock companies on the 18th of June, 1897, the company was, under ection 143 of the Companies Act, 1862, deemed to be dissolved on the expiration of three months from the latter date. The debenture-holders and to have the freehold land vested in the new trustee by the court. now applied by summons to have a new trustee of the trust deed appointed BYRNE, J., made an order under sections 25 and 26 (1) of the Trustee Act, 1893, appointing a single new trustee of the trust deed, and vesting the land in him for the estate thereon which was vested in the General And the new trustee was authorized to pay the costs of the applicants out Securities Trust and Agency (Limited) immediately before its dissolution. of any moneys coming to his hands under the trusts of the deed.COUNSEL, T. R. Hughes; Theobald. SOLICITORS, Oliver Jones, Billson, & Co., Liverpool; Thorne & Welsford.

[Reported by N. TEBBUTT, Barrister-at-Law.]

WEEKES v. THE KENT, SUSSEX, AND GENERAL LAND SOCIETY (LIM.). Kekewich, J. 23rd April. COMPANY-INLAND REVENUE-INCOME TAX-PREFERENTIAL PAYMENTSDEBENTURE HOLDERS-COMMENCEMENT OF WINDING UP- -PREFERENTIAL PAYMENTS IN BANKRUPTCY ACT, 1888 (51 & 52 VICT. c. 62), s. 1 (1) (a)PREFERENTIAL PAYMENTS IN BANKRUPTCY AMENDMENT ACcr, 1897 (60 & 61 VICT. c. 19), s. 2.

Summons. This was an application on the part of the Commissioners of Inland Revenue that the claim of the Crown, amounting to £89 3s. 6d. in respect of income tax charged on the defendant company for the year 1893 ending on the 5th of April, 1894, be allowed as a preferential claim and paid in full by the official liquidator and receiver on behalf of the debenture-holders. By the Preferential Payments in Bankruptcy Act, 1888, s. 1, sub-section 1 (a), priority in payment to all being wound up under the Companies Act, 1862) up to the 5th of April other debts was given (inter alia) to income tax assessed (on any company the whole one year's assessment. next before the commencement of the winding up, and not exceeding in Section 2 of the Preferential Payments in Bankruptcy Amendment Act, 1897, enacts that: "In the winding up of any company under the Companies Act, 1862, and the Acts amending in Bankruptcy Act, 1888, shall, so far as the assets of the company the same, the debtз mentioned in section 1 of the Preferential Payments available for payment of general creditors may be insufficient to meet them, have priority over the claims of holders of debentures or debenture stock under any floating charge created by such company, and shall be paid accordingly out of any property comprised in or subject to such charge." The later Act received the Royal Assent on the 15th of July, 1897, but there is no time specified in the Act for its commencement. In the present case the winding up commenced, and this debenture-holders' action was brought before the 15th of July, 1897, and the question which the court was asked to decide was whether or not the Act was retropective. Counsel for the company referred to the judgment of Wright, J., given two days previously in the case of Re Waverley Typewriter, when a precisely similar question was determined in favour of the company. The case of Anglo-French Co-operative Society (32 W. R. 748) was also referred to.

KEKEWICH, J.-I shall not express any opinion, but simply follow Wright, J.'s, decision and hold that the Act is not retrospective, and therefore does not apply to the present cage. I do not see why I should not make the Commissioners of Inland Revenue pay the costs which they have caused the other side to incur.-COUNSEL, Vaughan Hawkins; Kerly. SOLICITORS, Solicitors of Inland Revenue; Kerly, Son, & Verden.

[Reported by R. J. A. MORRISON, Barrister-at-Law.] EHRMANN, BARTHOLOMEW. Romer, J. 1st and 26th April. CONTRACT OF SERVICE-WINE MERCHANT's Traveller-NEGATIVE STIPULA TION AGAINST DOING OTHER BUSINESS-INJUNCTION. Motion. The plaintiffs were a firm of London wine merchants. The defendant had been a traveller in their employment engaged to act as such for ten years by articles of agreement dated the 24th of August, 1897. The present motion was brought by plaintiffs to restrain the defendant from engaging or employing himself in any other business than that of plaintiffs' firm, and in particular from acting as traveller for Messrs. Marzell & Co., another firm of London wine merchants, and from soliciting orders for them during the term of the said agreement. Clause 3 in said agreement was as follows: "The traveller shall diligently and continuously employ himself as traveller of the firm for the

« PreviousContinue »