Page images


[ocr errors]

lute than in the recent case, and it is possible that they may be distinguished. Alty v. Farrell (1896, 1 Q. B. 636) was a decision of the Lord Chief Justice and Wnieirr, J. (two members of the majority of the court in K1-use v. Johnson); here a byelaw, made under the Weights and Measures Act, 1889, as to the weighing of coal in course of delivery to a purchaser, was held to be unreasonable and bad on the ground that it entrusted excessive power to a single constable; but the terms of the power of making bye-laws given by the Act in question in that case were more specific than in the present case, and the bye-law was hardly consistent with the Act itself. Without referring further to cases, it may be said that Kruae v. Johnson does not supersede all previous decisions, and that local authorities would be acting rashly if they regarded it as giving them an absolutely free hand as to their local legislation; it does, however, lay down general principles for their guidance, and makes difficult the task of anyone who desires to impeach the validity of their bye-laws.

[ocr errors][merged small]

Part 11.—First Registration /oorztirzzaedj.—Absolute t1'lla.—The most noticeable feature under this heading in the rules is the power for the registrar to refer the titles of applicants for registration with an absolute title to the conveyancing counsel of the court (rule 31). The registrar may act on their opioion. We conceive that the efiect of this provision will be probably to encourage application for registration with absolute title, as the registrar may, in the exercise oi his discretion under section 17 of the Act of 1875, aqzept a good holding title for registration as absolute where the conveyancing counsel to whom the mic’ is referred advises that a good holding title is shown. Moreover, the provisions contained in the Act of 1897 for indemnifying persons whose interests are affected by reason of registration will all tend in the same direction.

The mode of application for an absolute title is prescribed (rule 25). An abstract of title is to be delivered in the usual form, together with all such deeds and documents relating to the title as the applicant has in his possession or under his control, including o inions of counsel, conditions of s§l_e, old rgpiisitions, and thellike (rule 29)} The’ regisTrar‘rfiay sippoint an agent to make searches and inquiries in relation to the title (rule 30). This will be a usefurpower, particularly in country cases.

Advertisements of the application are to be inserted in certain newspapers (rule 32), and advertisements may be grouped to save expense (rule 33). Notices of the application are to be served on tenants and such other persons as the registrar shall dggm necessary (rule 34).‘ '“"*‘" RA A R

he rules do not, however, throw any light on the effect of first registration with an absolute title. Section 7 of the Act of 1875 is as follows: h Elhq firgt (registration of guy pprson asfiproprietor oatmeo an in this Act re erre to as rst registere roprietor) with an absolute title, shall vest in the persoii) so registered an estate in fee simple in‘i"iIch land, together with all rights, privileges, and appurtenances belonging or appurtenant thereto, subject as follows :

S 1) To the ineumbrances, if any, entered on the register ; an

(2) Unless, under the provisions of this Act, the contrary is expressed on the register, to such liabilities, '1;-igll)its_, and interests, if zany, as are by this Act declared not

0 e incum rances; an ,

(3) Where such first proprietor is not entitled for his own benefit to the land registered as between himself and any persons claiming under him to any unregistered estates, rights, interests, or equities to which such persons may be entitled, but free/jgon/i all other estates and interests whatsoever, includiiig estates andkinterests of her Majesty, her heirs and successors.

First registration with an absolute title appears, therefore, to confer a statutory estate in fee simple subject as mentioned in this section. The legal estate appears to have been ignored by


the Acts. Thus, if at the time of registration the legal estate _were outstanding in an incumbrancer, it would appear to remain in him until reconveyed, unless perhaps. in the case of an

absglute title, a subsequent rdgistered transfer for value operates 1, 1 to_ get it in. We venture to think, therefore, that ' it would ,7;

have been better if the Rule Committee had devised some expedient for getting in outstanding legal estates in the registered proprietor {pro frwio on the discharge of- the incumbrances entered on the register. The Acts, it should be observed, do not giveither registered proprietor any leasing powers by registered disposition, and it seems torus, therefore, that the legal estate must still be of importance for the purposes of leases and other unregistered dispositions. Why the Acts do not confer any power to lease is by no means clear, and we think that such a power ought to have been given. This omission appears to be one of the principal defects in the Acts. Subsection 3, above set out, has the eifect, we conceive, of preserving the rights of a cestui qua trust of the registered proprietor as against himself andqhis voluntary transferees, and is not confined merely to the case where a mere nominee is registered. It is clearly of the utmost importance to determine the efiect of first registration with an absolute title, inasmuch as the eife ct of first registration with a possessory title is determined by reference thereto.

Possossory tz'tZo.—Section 8 of the Act of 1875 is as follows :

The registration of any person as first registered pr )prietor of freehold land with a possessory title only shall not atiect or prejudice the enforcement of any estate, right, or interest adverse to or in derogation of the title of such first registered proprietor, and subsisting or capable of arising at the time of registration of such proprietor; but,

save as aforesaid, shall have the same effect as registration ‘of a person'wi'tl1\an absolute title. “ '

Registration with a posse=sory title seems therefore also to confer a statutory fee simple as in the case of an absolute title, and the efiect of first registration with a possessory title is similar in every respect to the efiect of first registration with an absolute title, save that the estates, rights, and interests mentioned in the above section are paramount to the statutory fee simple conferred by first registration. The paramount estates and interests are those which are adverse to the title of the first registered proprietor; his own estate is, therefore, it seems, merged in the statutory fee. There is, however, no machinery in the Acts or Rules for afterwards merging an estate, which is originally a paramount estate, in the statutory fee. Thus, suppose the l_egal_estate is outstanding at the time of first registrationftifeii it is clearly a 'para1iio‘lmt'estate‘.“"Does it for ever after remain a paramount estate, requiring to be conveyed if need be by deed ofi the register, or is it capable of passing by a registered transfer for value after it has once been reoonveyed tot e re istered roprietor for tlie time being? Probably the latter wifi be heldgto be the case in order to give efiect to the scheme of the Acts. No immediate benefit is conferred on a landowner who registers with a possessory title, as the abstract of title to all estates, rights, and interests which are paramount to the statutory fee simple will be required by a purchaser, and such estates, rights, and interests, unless previously got in or released, will have to be conveyed by unregistered disposition. If they have been got in by a previous registered proprietor the vendor must shew how they were so got in, and that the person who got them in was the then registered proprietor. It has, however, been contended that registration will operate as a filter so as to clear the muddy stream of title as from the date of registration ; this appears to be only true in the very simple cases. In other words, where no simplification of title is really required the register will work, but where there are complications registration will merely be relied on to confirm the title off the register.

The statutory declaration required for the purposes of registration with a possessory title should in practice never omit a statement of the title, in order that, after a certain number of years, contracts for sale may stipulate that the declaration shall form the -root of title.

The section above set out may, however, be read in two ways —thus, either “ The registration . . . shall not afiect . . . any estate . . .” and “ shall not . . . prejudice


the enforcement of any . . . right _. . .” or “The registration . . . shall not afiect or prejudice the enforcement of . . .” The first reading actually preserves the

estate which is adverse to the title of the first registered proprietor, while the second merely enables the paramount owner to enforce his rights so long as they are subsisting. Thus, ii the second construction be correct, it would not, perhaps, be necessary for a paramount mortgagee when paid ofi by the proprietor to reconvey the legal estate to him; whether the latter construction was intended or not, it will not be safe to act on it. Assuming that the first construction is adopted, it seems to follow that a bare outstanding legal estate would not in the case of a possessory title be got in by means only of a registered transfer for value.


The Law of Employer's Liability and Workmen's CompensationBy THOMAS BEVEN, Barrister-at-Law. Waterlow, Bros. & Layton (Limited).


Sir,—It surely must be in every one’s experience from the time the Royal Courts building was opened, that the profession has suffered both bodily and mentally (for whatever affects the body must in some way affect the brain) by reason of the absence of lifts at the Royal Courts.

Take, for instance, the Chancery taxing-master's oflices at tho top of the building, and to which clerks have to carry up large bundles of papers day by day; and nlsozthe Lunacy oiiice.

My experience extends from the time the building was opened, an-"1 I should say the number of persons ascending the stairs is “ legion." I have known cases of rupture, besides other complaints, occasioned by the exertion.

May we hope that the matter of the provision of lifts will not fall through on the ground of expense. Is not the Government still in possession of some nii"ions of unclaimed money which can never be claimed ? ' SoL1o1'ron’s CLERK.

May 18.

[See observations under head of " Current Topics."—ED. S.J.]


Notice is hereby given that, after the expiration of forty days from the date hereof, it is proposed to submit to Her Majesty in Council, inpursuance of the above-mentioned Act, the draft of an Order in Coimcil declaring that Registration of Title to Land is to be compulsory on sale in the County of London.

And notice is hereby further given that, in accordance with the provisions of the Rules Publication Act, 1893, copies of the proposed draft Order in Council can be obtained by any public body, within forty days of the date of this notice, at the Privy Council Office, Whitehall.

Privy Council Office, May 17th, 1898.


The following is the Draft Order referred to in the above notice:
At the Court at
The day of , 1898.
The Queen’s Most Excellent Majesty in Council.

Pursuant to the 20th section of the Land Transfer Act, 1897, Her Majesty, by and with the advice of Her Most Honourable Privy Council, is pleased to order and declare, and it is hereby ordered and declared, with respect to the County of London, as follows :

Registration of Title to Land is to be compulsory on sale in the several portions of the County mentioned in the first column of the Schedule hereto, on and after the respective days mentioned in the second column of the same Schedule.

In this Order “ Parish ” means a place for which 0. separate poorrate is or can be made, or for which a separate overseer is or can be appointed, and the boundaries of each such parish shall be those constituted and limited at the date of this Order.

[merged small][graphic][merged small][merged small][graphic][merged small][merged small]

In re The Arbey Wood \Vool Manufacturing Company Limited
George Shears and Frank Shears v. The Arbey Wood Wool Manufacturing
Company Limited.
Mr. Justice Kekewich (1898 -T.—No. 7-15).
In re The Tom Tit Cycle Company Limited
Alfred Love v The Tom ‘I‘it Cycle Company Limited, George Pulgrave
Simpson, and Samuel Studd. Hansnuar, C.
\VuirscN VACATION, 1898.

There will be no sitting in court during the Whitsnn Vacation.

During Whiteim Vacation, all applications “ which may require to be immediately or promptly heard,” arc to be made to the Vacation Judge for the time being.

Mr. Justice Phillimore will act as V acalion Judge (for Mr. Justice Ridlcy) from Saturday, May 28th, to Tuesday, May 31st, both days inclusive.

Mr. Justice Ridley will act as Vacation Judge from \Vednesday, J une lst, to Monday, June 6th, both days inclusive.

Mr. Justice Ridley will sit in Queen's Bench J ndges' Chambers on Thursday,June 2nd, and (if necessary) on Friday, June 3rd. On other days within the above period, applications in urgent matters may bemado to_ the Vacation Judge personsll or b o t.

1st September, 1898.

[ocr errors]

lst January, 1899.

lst October, 1899.

lst January, 1900. 1st July, 1900.


Y Y P 5

In any case of great urgency the brief of counsel may be sent to the judge by book post, or parcel, prepaid, accompanied by oiiice copies of the aflldavits in support of the application, and also by a minute, on a separate sheet of paper, signed by counsel, of the order he may consider the applicant entitled to, and also an envelope capable of receiving the papers, addressed as follows :—“ Chancery Official Letter : To tho Registrar in Vacation, Chancery Registrars‘ Chambers, Royal Courts of Justice, London, W.C.”

On applications for injunctions, in addition to the above, a copy of the writ, and acertificate of writ issued, must also be sent.

The papers sent to the judge will be returned to the Registrar.

The address of the Vacation Judge for the time being can be obtained

on application at the Chancery Registrars’ Chambers, Room 136, Royal Courts of Justice.

In the House of Commons on the 12th inst. Mr. Lewis asked the Attorney-General whether, having regard to the recent rapid growth of the practice of leglslating by reference, and to the dilllculty of understanding the scope and effect of Bills which amended or repealed sccti011s~

» giformationt gfnthte gionse, cziausef ciopieshof the sections referiied to in overnmen 1 s o e printe in u l. T e Attorne -General said: The question is not one on which I can give any generdl undertaking, as it mint depend upon the nature of the Bill and the discretion of the Minister , in charge. Her Majesty's Government fully appreciate the objections to f legislation by reference, but, in my opinion, the House of Commons must I bear more responsibility for the change than the Ministers who have introduced Bills, to whatever Government they may have belonged.


of Acts by reference to such sections, the Government would for tho



Court of Appeal.



Appeal by the defendants from the refusal of Mathew, J., sitting at chambers and taking commercial summonses, to order the plaintiffs to produce ship’s papers. The action. was brought under two policies of marine insurance to recover for loss of goods per ship Conqueror. The plaintiffs were the insurers of goods shipped for a voyage on The Conqueror, and they had effected re-insurances with the defendants. The plaintiffs, in their points of claim, alleged that the ship and cargo were lost on the voyage by the perils insured against, and that they had paid the assured for a total loss. Upon a summons for directions, the defendants applied for an order that the plaintiffs and all persons interested in the proceedings and in the insurance should iroduce on oath all ship's papers (following the terms of Form 19 in Appendix K. to the Rules of the Supreme Court, 1883, with the additions specified in the case of China Steamship Co. v. Commercial Union Assurance Co., 30 W. R. 224, 8 Q. B. D. 142). Mathew, J ., refused the application upon the ground that an order for production of ship’s papers would not be made in a case of re-insurance, but ordered lists of documents to be cxchaiiged and inspection given.

Tris Counr (A. L. Siuirii, Curr. r, and Vsuoiirix \ViLr.iAns, LJJ.) allowed the appeal.

A. L. Sinrir, L.J., said that, though in this case it scemed to him that the order made by Mathew, J., for the exchange of documents and inspection was suflicient, yet the parties and the learned judge desired to have the question whether an order for production of ship's papers should be made in a case of rc-insurance settled by this court. The rule as to ship's papers was an old one, as seen from the case of Golllirchmidl v. Mango! (1 Camp. 559), decided in 1809, and was a rule peculiar to marine insurance. It was a common order to make as between the original assured and the underwriter. Then in 1890, in the case of Noni Dcutsclie l'ersiclzuu1iy.r Gesel/aciia/t v. Merrlzants‘ Marine Insurance Co. (not reported), a Divisional Court composed of Mathew and Cave, JJ., decidcd that an order for production of ship’s papers would not be made in a case of reinsurance. In 1892 that decision was referred to in Willis §~ Co. v. BaddeI:y (40 W. R. 577; 1892, 2 Q, B. 324) in this court, and Bowen, L.J., and he (the Lord Justice) said that the question must be left open. In 1897 it was sa‘d that Collins, J ., at chambers, in Royal Exchange‘anco Corporation v. Faber, made an order for production of ship’s papers in a case of re-insurance. \Vhy had not the re-insurer the some rights against the original underwriter as the latter had against the original assured? All the defences open to the original underwriter as against the assured were open to the re-insurer. It seemed right that the re-insurer should see a l the documents which might shew a defence by the original underwriter as agaimt tho assured. It was said that the underwriter would have no documents to produce. But the tame obrervatiun would apply to an insurance on goods, where the assured would probably have no ship’s papers, and yet the rule applied equally to an insurance on goods. The assured might have access to the papers. In his opinion the rule as to production of ship's papers applied to a case of re-insurance.

Cnrrrr and VAUGHAN \Vii.i.i/ms, L.JJ., coiicurred.—CoUivssr., Joseph lValton, Q,.O., and F. W. Ilollama; J. A. Hamilton. Soirciroiis, Hollams, Sons, Coward, §- Hawkslry; Waltons, Jolmion, Bubb, §- Wliatton.

[Reported by “Y. F. Bi\ii.m', Barrister-at-Law.)

[ocr errors]

Aii.nv—Vo.un'rizim—“l’aiisou SL'llJEC'l‘ ro Mrr.i'i'.ui.v LAW"-TRAINING wriii Raoumu FORCE8—BRBAKlNCl-UP or Cruir-Surisnovr.x-r Dari-mriox IN MILITARY Cusronr-Aiiiin' A01", 1881 (44 & 45 Vicr. c. 58), ss. 43, 158, 176.

Application by the defendants, other than Frogley, for judgment or a

new trial in an action tried by Kennedy, J., with a special jury. reported I

in 46 W. R. 249; 1898, 1 Q. B. 396. The action was brought by a

member of the Bedfordshire Volunteer Corps to recover damages for

assault and false imprisonment. The jury found a verdict for £300 damages against three defendants-Arthur Cooper, a sergeant, and

Thomas Lovelock and George Albert Short, privates in the same corps as

the plaintiff. The defendant Frogley was.a superintendent of the Herts

county police, and upon the findings of the jury judgment was given in his favour, and no question arose as to him. The facts, as stated by

Kennedy, J ., in his judgment in the court below, were as follows: The

plaintiff and the three defendants, with other members of the corps, were

ziu August, 1896, in military training with a portion of the regular forces at Slioincliffe. The camp was broken up on the morning of the 8th of

August. Early on that morning, and whilst the preparations for the

return of the volunteers to their respective homes were proceeding in the

camp, a. disturbance took place in and around the tent in which the plaintiff and others had been lodged, in consequence of some of the plaintiff's comrades accusing him of having stolen and hidden in his kit bag a number of articles which belonged to them. The adjutant of the corps, Captain Foote, having been informed as to the disturbance, came to the spot, and ultimately ordered Sergeant


Killen to form an escort and take the plaintiff to the guard t/ent,~ where he would find Lieutenant Roberts on the point of proceeding


with the luggage and its escort to Shorncliffe Railway Station. Sergeant Killen was to direct Lieutenant Roberts to take the plaintiff with the baggage guard to the railway station and there keep him until the D (plaintiff's) Company arrived. By the further orders of Captain Foote, conveyed through Serjeant Killen, the plaintiff, after his arrival at the railway station, was to be taken in military custody in the special military train which was then about to start for the conveyance of volunteers to W'atford, Boxmoor, and other stations to which the plaintiff and other members of his volunteer corps belonged ; and on his arrival at Boxmoor (the railway station, about two miles distant, for Hamel Hempstead, where the plaintiff lived) the plaintiff was to be taken by his escort to the policestation at Hamel Hempstend, and then handed over to the civil authority. Captain Foote at the same time directed that information as to what had happened should be given at Hemel Llempstead to Captain Sineaton, the officer in command of the plaintiff’ company. Those orders were carried out. After the plaintiff had reached Shorncliffe Station with the baggage guard, under Lieutenant Roberts, and the train was ready to receive her passengers, the defendant Cooper selected, in the usual way, from the ranks of the volunteers who were drawn up in the railway station, his two co-defendants Lovelock and Short to form the prisoner’s escort on the journey to Boxmoor and Hemcl Hempstead. '1‘he plaintiff was then placed in a compartment with these defendants, and the four so travelled together in the train toBoxmoor (a journey of about 3% hours). On the arrival of the train at Boxmoor the prisoner, under the charge of his escort, was directed by the defendant Cooper to remain in ii waiting-room while the rest of the volunteers, other than certain pei‘s0i.\S who would be required as witnesses in the plaintiffs case, were formally dismissed. The defendant Cooper directed Corporal Young to keep these witnesses together, and with them to follow the prisoner-’s escort to the police-station at Hemel Hempstcad. The defendants then marched with the plaintifi, who was placed between the two privates, to the police-station, and he was charged before the defendant Frogley with the offence of larceny. After inquiry, and after hearing the evidence of some witnesses, the defendant F rogley took the plaintiff into custody. The defendants and the witnesses are then formally dismissed. On the 16th of May Frogley applied to the magistrates at Hythe for a warrant for the arrest of the plaintiff, who was accordingly arrested, and the plaintiff _remained in custody until the 20th of October, when he was put on his trial at the quarter sessions at Canterbury and was honourably acquitted on the charges made against him. Kenncdy, J ., held that the plaintiff and the defendants, after leaving the camp at Shorucliffe, were no longer being trained or exercised with the regular forces within section 176, sub-section 8 (a), of the Army Act, 1881, they ceased therefore tobe_ subject to military law, and that the subsequent detention of the plaintiff in military custody by the defendants was not justiflable under sections 41, -15, and 158 of the Act. The defendants appealed. _ Tris Couur (A. L. Siiirir, CHITIY, and .Cor.i.ins, L.JJ.), after taking time to consider, allowed the appeal. Tney said that, by virtue of the \Var Oflice order of the 22nd of April, 1896, under which the volunteer ' t had one into camp and section 176, sub-section 8 (a), of the

regimen g I _ _ _ _ Army Act, 1881, the volunteer battahon, of which the plaintiff and the b “ ' d exercised with

defendants were members, did not cease to e traine or _ a portion of the regular forces” until the l).il3l.B.ll0l1 and its component parts were dismissed from being any longer under arms on the 8t_l.i of August, and that the plaintiff and the defendants were not dismissed until the plaintiff had been handed over to the police at _Ilemel idempstead. The plaintiff and the defendants, therefore, remained subject to military law until that time, and the action would not lie. Secondly, the f d t r rotected by section 158 of the Army Act, 1881, became

dc en ans we.ep _ _ _ that section, upon its true construction, authorized the detention lll. ll dt hav been

military custody of a person where an offence was a ege 0 _e committed by him while subject to military law, although he or his corps had ceased to be subject to military law, and the plaintiff had here bern kept in military custody. Further, by section 43 of the Army Act, 1881, the only redress (if any) which the plaintiff had was by complaint to his superior ofiicer (per Lush, J ., in Dawkms v. 1Iorzl_Paulet, 18 W. It. 336, at p. 343, L. R. 5 Q. B. 94, at p. 121), and upon this ground also the action 1 J 1‘ J Lawson Walton, Q C , and]? D Muir.

[ocr errors]

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


[ocr errors]

21 (5).

This case raised a question as to theconstruction o_f section 21 (5) of the Finance Act, 1894, whereby, in certain events therein specified, estate duty is not to be payable until the death of the survivor of husband and wife. By an indenture dated the 14th day of January, 184?, and made between James N. Strange of the first part, the defendant Charlotte M.

M E of the second part Dame Louisa Strange of

Strange then C. . yre -, _ the third part, and certaiii trustees of the fourth part (being the settle- ' d d nd shortl

ment made in contemplation of a marriage then inten e a _ y afterwards solemnized between the said J . N. Strange and C. Strange), certain sums of consols and personal property, partly reversionary and partly in possession, were settled upon trust to pay_ the income thereof the said James N. Strange for hfe, and after his decease to the said Charlotte M Strange for life, with remainder as to t-he capital of the trust

f l d f thi hildren or child of the marriage as therein mentioned; and

un s or c c _ N in the said indenti"'e was contained a. covenant by the said James . ‘ rsonal ro

Strange and the defendant Charlotte M. Strange to vest any pf: P

[ocr errors]

perty which the said Charlotte M. Strange was then or should during the intended coverture, or the said James N. Strange in her right should at any one time by gilt, bequest, or otherwise become entitled, of the value of £200 or upwards, other than a life interest only, and other than specific chattels not producing income, and besides the trust premises thereinbefore settled, in the trustee or trustees for the time being of the now stating indenture upon trust and to the intent that the same might be laid out by such trustees upon some of the stocks, funds, and securities prescribed by the said indenture, and that the stocks and securities upon which the same might be so laid out, and the dividends, interest, and annual produce thereof might be held by such trustees upon trust to pay the income thereof unto the said James N. Strange or his assigns during his life, and after his decease to the said Charlotte M. Strange or her assigns during her life, and from‘: he decease of the survivor of them, upon trust, if the defendant Charlotte M. Strange should survive the said James N. Strange, then after his decease in trust for the defendant Charlotte M. Strange, her executors, &c., but, if she should die in his lifetime, then after his decease upon such trusts and purposes as the said Charlotte M. Strange should by will appoint, and in default of appointment upon trustforherstatutory next-of-kin. Thedefendant C. M. Strangebecame entitled at dilfereiit dates during the said coverture to personal property within the mcanin g of the covenant as to after-acquired property above set forth, and such property was got in by the trustees of the settlement and duly invested by them. James N. Strange, the husband, died on the 1st of November, 189-l, whereupon the defendant Charlotte M. Strange became absolutely entitled to the investments representing such after-acquired property, and she accordingly required the trustees to transfer the same to her. The case came before the court upon an information by the AttorneyGeneral. The information stated that estate duty uirder the Finance Act, 189-1, became payable in respect of the said alter-acquired property as property passing on the death of the said James N. Strange, but she and her trustees refused to pay, contending that no estate duty had become payable in respect of the property bound by the said covenant to settle other or after-acquired property by reason of the provisions of section 21 (5) of the said Act, but the informant charged that the last-mentioned section did not apply, the dcfendant having become entitled, not to the income only, but to the capital of the property in question. The informstion prayed that it might be declared that upon the death of James N. Strange estate duty became payable upon the principal value of all property coming within the terms of and bound by the covenant to settle after-acquired property of the defendant Charlotte M. Strange as property passing on the death of the said James N. Strange. By section 21 (5) of the Finance Act, 1894, it is enacted that, “Where a husband or wife is entitled, either solely or jointly with the other, to the income of any properly settled by the other under a disposition which has taken effect before the commencement of this part of this Act, and on his or her death the survivor becomes entitled to the income of the property settled by such survivor, estate duty shall not be payable in respect of that property until the death of the survivor.” The case came before Vaughan Williams and Kennedy, J J ., sitting asa Divisional Court, on the 12th of August, 1897, when their lordships held that the case fell within the exemption, and that estate duty would not be payable until the death of Mrs. Strange. Against this deci-ion the Attorney-General appealed.

Tan Counr (LINDLEY, M.R., Rronr, and COLLINB, L.JJ.) allowed the appeal, and held that the wife having become entitled, not to the income only, but also to the capital of the fund, section 21 (5) did not apply. Throughout the Act the “income " of property was always used in contradislinction to the property itself. It was true that in a sense upon the death of the husband the wife became entitled to income, but that was a mere play upon words.—Covxssi., Sir R. E. lVcZ».iter, A.G., éir R. Finlay, S.G., and l’au_qlum Hawkins ; Dive!/, Q. 0-, and Butcher, Q.C. Souciroas, Solicitor to the Inland Itwenua.

[Report/ed by Wu. Bcorr Taoirrsos, Barrister-at-Law.]

[merged small][ocr errors]

This was an appeal from a decision of Kekewich, J . (reported ante, p. 253,_and 46 W. t. 350), who had dismissed the plaintiff's action for specific performance, and, the action having been registered as a Zia pendms, had directed that unless an appeal was set _dowir within a fortnight the registration should be vacated. The plaintiff, the purchaer of_ certain property, brought an action against the vendors to obtain 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, too_k out an originating summons under the Vendor arid I’urchaser Act, 181-1, to have it declared that the contract was not binding upon them._ Immediately after the issue of the writ the plaintifi registered the action as a lis pmdear. Upon the action and summons coming on by order for trial and hearing together, 1\8kGW1Cl], J ., dismissed the acti0n_with costs, and made no order on the summons. The plaintiff declaring his intention to appeal, Kekewich, J .. further directed, iu._ide_r section of 30 & 31_Vict._ o. 47, that unless an appeal was sot down withaida f9r1‘fiDlgPt_ tpctaf registpaféion of the action as a lis pmdens should be vaca . e p ain i appea e .

Tun COFRT (LINDLBY, l\l.R., and RXGIJY and COLLINS, L.JJ.) dismissed the_ appeal against the orders of Kekewich, J ., and directed that the registration of the action as a lis_ pendem should be vacated.—Cou.vssi., gotzlli/|;t(;é%;'(.j;);Ifl11%£'{:;‘£¢f3£M,!lEl7ZWglflfl, Q.C., and Ingla J03/cs. Souciroiis,

0 ,' I .
[Reported by R. C, MWXBXZIE, Barrister-at-Law.)


[merged small][ocr errors]

This was an appeal from a decision of Stirling, J ., and involved the question whether debentures which charge present and future property of a company give a charge on the uncalled capital. The facts were as follow : The company was incorporated in 1891 with a capital of £120,000, divided into 100,000 ordinary and 20,000 preference shares, all of £1 each. Shares of both classes had been issued, but the capital was not fully paid up. In 1892 the company issued 103 debentures of £10 each. These debentures charged with payment of principal and interest “the undertaking of the said company and all the property to which it now is or shall at any time hereafter become entitled, and all the estate, right, and title of the company in, to, and upon the said premises.” The company subsequently borrowed further sums, which were secured, subject to the debentures, by a charge on all its property, the uncalled capital being expressly included. A debenture-holders’ action was commenced in 1896 and a receiver was duly appointed by an order dated the 14th of April, 1896. On the 21st of April, 1896, a resolution was passed for the voluntary winding up of the company, and the receiver in the debentureholders’ action was appointed liquidator in the voluntary winding up. An order was made for the usual accounts and inquiries, and the master-'s certificate in March, 1807, found that the property charged in favour of the debenture-holders consisted of the particulars set forth in the second schedule thereto and did not include the uncalled capital. A summons was then taken out on behalf of the debenture-holders to vary the certificate by including the uncalled capital. Stirling, J ., was of opinion that he was bound by the decision of Chitty, L.J. (then Chitty, J.), in Re The Slrralham and General Estate: 00. (Limited) (45 \V. R. 105; 1897, 1 Ch. 15), and declined to vary the certificate. The plaintiff appealed on the ground that the decision in the last--named case was inconsistent with that of the Court of Appeal in Re T/16 1’;/la Works (Limited) (33 W. R. 67-1, 44 Ch. D. 534).

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

This was an adjourned summons to determine in what way the surplus assets of the Russell Literary and Scientific Institution should be dealt with. The institution was established in 1808 as a library for literary works, English and foreign journals, and for the delivery of lectures. The capital consisted of 700 shares of twenty-five guineas each, and there were to be subscribing members, and also life members on terms to be arranged. A deed was executed vesting the property in trustees, and rules were made as to the division of shares, the expenditure upon the purchase of books, and the payment of dividends. The shares of proprietors were saleable by executors on their deaths. The rule authorizing the payment of dividends was abolished in 1847 and in 1887 new rules were passed as to the payment of subscriptions, the transfer of shares, and the vesting the property in trustees for the benefit of tho proprietors. It was resolved to close the institution at meetings held on the 25th of April and the 16th of May, 1896, as from the 1st of May, 1896. The lease was surrendered and all liabilities discharged, and there was a surplus of £1,600. The question was whether this sum should be divided among the existing proprietors or whether the Literary Institutions Act. of1854, ss. 29 and 30, applied, and the property ought to be given to some kindred institution. Re Bristol Allienwum Soviety (43 Ch. D. 236) was cited. For the proprietors it was said that the institution was a jointstock company, and that therefore the Literary and Scientific Institutions Act, 1856, did not apply.

Nonrii, J., held that the provisions of the Literary and Scientific Institutions Act, 1854, did not apply to the distribution of assets because of the proviso in section 30 “that this clause shall not apply to any institution which shall have been founded or established by the contributions of shareholders in the nature of a joint-stock company." He held that the institution was in the nature of a joint-stock company and that the fund was divisible among the proprietors in proportion to the shares held by them.- (lovrvsai, Swinfiw Eddy, Q.C., and Elgood ; II. Terrell, Q C , and Douglas. SOLICITORS, F. B. Jlloyla; Carthew 4- Wb¢€1r1'.

[Reported by G. B. Hairiurox, Banister-at-Law.)

[ocr errors]
[ocr errors]
[ocr errors]

John Forrest Walters, on the 24th of June, 1896, entered into an agreement with the plaintiffs in this action, the New Ixion Tyre and Cycle Co. (Limited), to transfer to them certain letters patent in respect of pneumatic tyres, of which he was the registered proprietor. The agreement was not, however, registered until the 27th of September, 1897, although the plaintiffs were in possession of the letters patent from the date of the agreement. Walters assigned the letters patent to the plaintiffs on the 20th of October, 1897, when the assignment was duly registered. Before the_ registration of the agreement. Walters, on the 16th of September, 1894, granted a licence for valuable consideration to Spilsbury and three other defendants in this action to make and sell tyres under the letters patrnt, and notification of the licence was entered in the patent register on the 18th of September, 1897. Spilsbury and the three other defendants had express notice of the agreement and of the plaintiffs’ equitable title to the letters patent thereunder prior to the granting of the licence to them. On the 6th of October, 1897, Spilsbury and the three other defendants transferred their rights under the licence to the Licensed Tyre Syndicate (Limitc d), who were also defendants in the action. The plaintifis asked for a declaration that the licence or alleged licence was invalid and void as against them, and that they were entitled to the letters patent free from any right or interest of the defendants as licensees or otherwise; delivery up of the licence to be cancelled, and an injunctron. Spilsbury _and the three other defendants alleged that their rights under the licence were not subject to any rights or equities of the plaintiffs, and the defendant company claimed the right towork the patent under their title. The principal question which arose was whether, as the defendants had express notice, the plaintiffs could insist on their equitable rights under their agreement, although it was not registered until after the registration of the licence. This depended on the consideration of _the Patents, Designs, and Trade-Marks Act, 1883, s. 87, which provides that “Whore a person becomes entitled t

by assignment, transmission, or other operation of law to a paten

. _. . _the comptroller shall, on request and on proof of title to his satisfaction, cause the_namc of such person to be entered as proprietor of the patent_ . . . in _the register of patents . . . The person for the time being entered in the register of patents . . . as proprietor olapatent . . . rhall, subject to any rights appearing from such

register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with the same, and to give effectual receipts for any consideration for such assignment, licence, or dealing. Provided that any equities in respect of such patent . . . may be enforced in like manner as in respect of any other personal property.” l_{axr.wrcir, J;—I think that the plaintiffs are entitled to judgment. It is necessary in the first place to consider the meaning of section 87 of the Patents, _Designs, and Trade-Marks Act, 1883, in order to see how it affects the title of the plaintiffs and the defendants respectively. For that purpose one must see what the section requires to be done and what it allows to be done. Section 23 of the Act provides that there is to be a register of the title to patents, including equitable as wcll as legal interests, and then sect ion 87 protects the interest of the person who has put_ his title on the register so as to prevent a person who has not registered from asserting a legal or equitable title against the person who has_ registered: That is the general principle. Anyone, therefore, who registers any _instrument under that section must register it subject to any rights which may appear by the register to be already vested in any one_ other person. It is therefore plain that when the plaintiffs registered their agreement after the defendants had registered their licences, so far as the registered fitle_was concerned they took subject to that licence; and it is because their agreement and the assignment which followed it are subject to thatlicence that the plaintiffs came here to insist that as ajzainstthem the licence is invalid. Is it, then, competent to the plaintiffs to msist upon the equitable right which is the foundation of their claim? There mightbe other equities brought forward with reference to other facts. The equity which the plaintiffs insist on here is that at the time the defendants took the licence they had, not constructive merely, but express notice of the agreement under which the plaintiffs afterwards took their assignment, and that the defendants cannot therefore insist on their registered licence as against the agreement of which they had notice. That is the plaintiffs’ point, and I take it that the defendants must shew that there is, by language of which there can be no doubt, a provision extluding such title as that alleged by the plaintiffs. The provision at the end of section 87 is at any rate not in favour of the defendants. lf the subject-matter of the agreement were a leasehold there can be no doubt that the defendants, having notice of the agreement, could not take a title so as to defeat the plaintiffs, and that is a species of personal property assignable at law as letters patent are assignableat law, _and it seems to me that what is applicable to the one is necessarily applicable to the other. At any rate I think the proviso at the end of section 87, even if not in favour of the plaintiffs, is not in favour of the defendants, and in the absence of any proviso in the Act, or of any d6C1E1011 of the courts in their favour, I think the proper construction of the Act is that such an equity as the plaintiffs a ege is open to thcm as an argument with reference to their title. Having disposed of that, the_next question is whether the plaintiffs have established their equity. [His lordship then considered the evidence and came to the conclusion that the defrndants had express notice of the agreement, and contmued:] I must therefore hold that this licence, although on the Iegister, and although on the register prior to the registration of the


agreement of the 24th of June, 1896, does not interfere with the laintiffs’ rights, and that it is void as against them.—Cocnsar., Rmshaw, 5.0., and Rowdm; Arthur Powell; A. Cartmell. Soucrrons, Lewis Q Lewis ; Foster, Grave, §- 00. ; Foss §- Ledsam.

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

Case stated by justices of the county of Kent and argued before a full court of the Q.u¢en’s Bench Division last month, when judgment was reserved. The facts are stated in the judgment of

Lord Rcssann, C.J.—The County Council of Kent, claiming to act under their statutory powers, made the following bye-law : “ 4. Playing musical instruments, &c.—No person shall sound or play upon any musical or noisy instrument or sing in any public place or highway within fifty yards of any dwelling-house aft/er being required by any constable, or by an inmate of such house personally, or by his or her servant, to desist.” The appellant was summoned before the magistrates for offending against this bye-law, when it was proved that on the 17th of October, 1897, he persisted in singing in a public highway within fifty yards of a dwelling-house, after having been required by a policeconstable to desist. It was further proved by the occupier of the dwelling-house that the singing of the appellant and those with him was an annoyance to such occupier. The occupier had not, on the day in question, set the constable in motion, but he had on previous occasions complained to the police of the appellant's singing. The magistrates convicted the appellant, and against that conviction the present appeal is brought. The question reserved for this court is whether the bye-law is valid. It valid the conviction is to stand. It is objected that the bye-law is ultra vires on the ground that it is unreasonable, and, therefore, bad. It is necessary, therefore, to see what is the authority under which the byelaw in question has been made, and what are the relations between its framers and those sfiected by it. But first it sccms necessary to consider what is a bye-law. A bye-law of the class we are here considering 1 take to be an ordinance affecting the public or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not be done and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the bye-law, they would be free to do or not to do, as they pleased. Further, it involves this consequence—that, if validly made, it has the force of law within the sphere of its legitimate operation (see Edmond: v. The Wain-men’: 00., 24 L. J. M. C. 124, 1855). In the present case we are dealing with a bye-law made by a local representative body—namely, the county council of Kent, which is

created under the Local Government Act, 1888, and which is endowed with the powers of making bye-laws given to municipal corporate bodies under the Municipal Corporations Act, 1882. Section 16 of the Local Government Act, 1888, provides that a county councilshall have the same power of making bye-laws in relation to their county as the council of a borough have in relation to their borough; and it further provides that section 187 of the Public Health Act of 1875 shall apply to such bye

laws. I will take these statutes in the order of time. Section 182 of the

Act of 1875 provides that all bye-laws made by a local authority under

that Act shall be under their common seal and may be altered or repealed by a subsequent bye-law, but no bye-law shall be repugnant to the laws of England or to the provisions of the Act. Section 183 gives power to impose penalties. Section 184 provides that bye-laws shall not take effect until confirmed by the Local Government Board, which may allow or disallow them, and, before their confirmation, notice of intention to apply for confirmation must be advertised, and for a month at least before such application a copy of the proposed bye-laws must have been kept at the cffice of the local authority for the inspection of ratepayers, and the clerk of the local authority is bound to furnish on application a copy of the proposed bye-laws, or a. part of them, to any ratepayer on certain payment being made. Section 23 of the Act of 1882 provides that the council of a borough may from time to time make such bye-laws as to them seem

meet for the good rule and government of the borough and for the prevention and suppression of nuisances not already punishable in a summary manner, and they may by such bye-laws appoint such fines, not exceeding £5, as they deem necessary for the prevention of offences against the bye-laws. It is under this authority that the bye-law in question was framed. \Vhat are the checks or safeguards under which this very wide authority of making bye-laws is exercisable? The same secjjon 23

further provides that no bye-law can be made unless two-thirggdvf the whole number of the council are present, and, when so made, it all not come into force until the expiration of forty days after a copy thereof has been fixed on the town-hall, and it shall not come into force until the expiration of forty days after a copy sealed with the corporate seal has

been sent to the Secretary of State; and if within those forty days the Queen, with the advice of her Privy Oouncil, disallows a proposed byelaw, or part thereof, such bye-law or such part shall not come into force, and the Queen may within the forty days enlarge the time within

which the bye-law shall not come into force. We thus find that Parliament has thought fit to delegate to representative public bodies in towns and cities, and also in counties, the power of exercising their own judgment as to what are the bye-laws which to them seem proper to be

« PreviousContinue »