no longer any authority. Doubtless many consequences still remain to be discovered. One of the most important judgments yet given in consequence of Boulter's case was delivered last week by a Divisional Court in the case of Reg. v. The Justices of Staffordshire (reported elsewhere), in which it was decided that on a successful appeal to quarter sessions from the refusal of the licensing justices to renew a licence, the justices cannot be ordered to pay the costs of the appeal even when they make themselves parties by instructing counsel to oppose the renewal, nor can any objector be condemned in costs. It was held in Reg. v. The Justices of London (43 W. R. 387; 1895, 1 Q. B. 616) that a court of quarter sessions has discretion over the costs, and where justices make themselves parties to an appeal they have a right to their costs if the appeal fails, and may be ordered to pay costs if it succeeds. This was decided, however, on the assumption that the licensing justices constituted a court of summary jurisdiction, and that the Summary Jurisdiction Acts of 1879 and 1884 applied to the appeal in question. Now, in Boulter's case Lord HERSCHELL said that the licensing justices have an absolute discretion to determine, in the interests of the public, whether a licence ought to be granted, and every member of the public may object to the grant on public grounds; that the objector merely informs the justices to enable them to decide what is for the public benefit, and that such an objector cannot be properly considered as a party to litigation, nor, if the objection succeeds, can it be deemed that there is a decision in favour of the objector. As is well known, their lordships decided that the Summary Jurisdiction Act, 1879, does not apply to appeals from the licensing justices, and that on such an appeal an objector who does not appear at quarter sessions cannot be ordered to pay any costs. The recent decision goes a little further and establishes the principle that what Lord HERSCHELL said of the objector at the licensing meeting applies equally to the objector at quarter sessions, and that the court of quarter sessions on allowing an appeal from licensing justices has no power to order an objector to pay costs when he does appear. Hence Reg. v. The Justices of London is no longer law, and for the future objectors to the renewal of licences can safely appear at quarter sessions without running any risk beyond their own costs. Also, counsel who represent the licensing justices on such appeals need no longer be careful to keep on the right side of the line which separates conduct such as to make the justices "parties" from that impartial attitude which seeks merely to inform the court of what happened at the licensing meeting.

WHERE THE holder of a bill of sale seizes the goods upon any default in payment, it makes all the difference as to his ultimate rights whether the seizure is made with a view to realizing the security or only with a view to maintaining the security. By section 7 of the Bills of Sale Act, 1882, it is provided that, within five days from the seizure, the grantor of the bill of sale may apply to the High Court or to a judge in chambers, and the court or judge, if satisfied that by payment of money or otherwise the cause of seizure no longer exists, may restrain the sale of the goods, or may make such other order as may seem just. But when the grantee has seized the goods for the purpose of realizing his security, he comes within the ordinary rule that a mortgagee who takes possession thereby makes a demand for payment, and consequently must submit to be paid off without notice or interest in lieu of notice (Bovill v. Endle, 44 W. R. 523; 1896, 1 Ch. 648). Hence, upon an application by the grantor under the above section, the court has jurisdiction to order the bill of sale to be given up upon payment of principal and interest to date and costs (Ex parte Wickens, 46 W. R. 385). In the recent case of Ex parte Ellis, on the other hand, the seizure was made for the purpose of maintaining the security, and it was held by the Court of Appeal that the above rule did not apply. The sum secured was £30, to be paid on a fixed date in 1899, with monthly payments of £1 10s. for interest. Default was made in payment of one of the monthly amounts, and the grantee seized the chattels comprised in the bill of sale, the warrant authorizing the bailiff to hold possession till payment of the £1 10s. The grantor applied for relief under section 7, and DARLING, J.,

ordered that upon payment of £31 10s. and costs the grantee should release the goods and deliver up the bill of sale. The Court of Appeal, however, taking the distinction adverted to above, held that there was no jurisdiction to make such an order. The seizure was not a step towards realization, but looked only to the maintenance of the security. Were the law otherwise, it was pointed out, a bill of sale holder who had advanced money for a fixed term would be unable to take a step for the purpose of maintaining his security without running the risk of the transaction being terminated.

THE LAND TRANSFER RULES.

IV.

Part II.-First Registration (continued).-Freehold intermixed with copyhold land.—Under rule 72, where there is any doubt whether land is of freehold or copyhold tenure a note to that effect is to be entered in the register, presumably the Property register, and that the registration of the land is made without prejudice to any right that may arise if it subsequently turns out that the land is copyhold.

Section 2 of the Act of 1875 provides that:

.;

2. land shall not be registered under this Act unless it is of freehold tenure or is leasehold but for the purposes of this Act customary freehold, in any case in which an admission or any act by the lord of the manor is necessary to perfect the title of a purchase (sic, presumably "purchaser " is meant) from the customary tenant, shall not be deemed to be land of freehold tenure.

This section is amended by the Act of 1897 (Schedule I.) as follows:

If, at any time, land is found to have been registered with absolute or qualified title contrary to the provisions of this section (ie., section 2 of the Act of 1875), the registration shall not be annulled, but shall be deemed an error not capable of rectification under the principal Act (see sections 95 to 97 of the Act of 1875), and any person suffering loss thereby shall be indemnified (see section 7 of the Act of 1897) accordingly.

Then by the Act of 1875, section 67, it is provided as follows:

If it appears to the registrar that any land, application for registration whereof is made to him, comprises land of freehold tenure and also land of a tenure other than freehold intermixed and undistinguishable, he may, notwithstanding anything in this Act (see section 2, set out supra), register the land, but he shall enter notice on the register in such manner as he thinks fit of the facts relating to the tenure of the land, and the tenure of the portion of the land other than freehold shall remain unaffected by the registration.

Now, under this last section, as explained by rule 72, it seems. clear that where freeholds and copyholds are indistinguishable they may be registered, and where the prescribed note is entered on the register the copyhold portion will remain unaffected. On the other hand, where no such entry has been made, the copyholds having been registered in error with an absolute or qualified title (the qualification of course not relating to the tenure), it is not so clear, having regard to the amending provision of the Act of 1897, what will happen. That provision, though purporting only to be an amendment of section 2 has effect, it is conceived, also on section 67. Now, a copyholder incurs a forfeiture by alienating his land by a common law assurance (Elton, 2nd ed., p. 229), though it is conceived that this rule of law would not apply to a simple deed of grant at the present day, nor to a registered disposition of land held under a possessory title, for neither of them have any tortious operation with respect to the rights of the lord; in other words, the conveyance or registered disposition would pass to the purchaser only an equitable interest in the copyholds. But where the land is registered with an absolute or qualified title and no note is entered on the register, then, if, as is conceived to be the case, the amendment contained in the Act of 1897 is applicable, the effect of the registration would be to enfranchise the land; and the lord of the manor, in

that it has already proved its value, and the circumstance that since the second edition was published the author has spent fiveyears in the arduous duties of stipendiary for the Potteries district adds much weight to the advice he gives his lay brethren. It is not a book for the magistrate to take to court with him so much as one for his study before he goes to court. In it he will find a clear and readable description of the nature and duties of his office and many hints as to the weight he should attach to the various kinds of evidence.

66

In a

Some of the author's remarks concerning police-constables as witnesses are well worth quoting. He writes: Speaking of them as a class they are men of honesty and good feeling, for it is by their good character that they have obtained the post. Officialism, however, is the petrifier of the human heart, and the constant exercise of a constable's professional duties begets a callousness and a want of regard for the rights and liberties of the individual. considerable number of petty sessional cases the constable is the principal witness, if not the only one. It is all important, then, that the magistrate shall understand that only the amount of weight must be attached to such a witness as would be attached to one who is skilled in the performance and interested in the result. If his evidence be reliable the allegations be puts forward will be given when he makes his statement directly on being sworn; any addition to them, suggested after a strong cross-examination, should be received with little favour. The reason for this is obvious, for should the first statement be weak there is no witness who knows better how to forge the links to a conviction." Although we recommend this little book especially to the notice of newly-fledged magistrates, no justice of the peace, however old a hand, can fail to reap some benefit from a study of it.

QUARTER SESSIONS.

A HANDBOOK FOR JUSTICES OF THE PEACE AT QUARTER SESSIONS. By GEORGE ILIFF SIMEY, B.A., Deputy Clerk of the Peace of the County Palatine of Durham. Waterlow & Sons (Limited). This is a book of quite a different nature from that just noticed, though written for the benefit of the same class. It is essentially a book for use in court, and it is a handbook for reference by justices as to any point of procedure which may arise at quarter sessions. Thus it gives the rules as to appeals in various cases, and carefully shews how appeals under the Summary Jurisdiction Act, 1879, differ from those under the Licensing Act, 1828, which distinction is made necessary by the well-known decision of the House of Lords in Boulter v. The Justices of Kent. It gives the form of oath applicable to each of the various occasions on which an oath has to be taken, but though it sets out the oath in the Scotch form, strange to say it does not give the form of affirmation authorized by the Oaths Act, 1888. The law as to the manner in which stolen property may be dealt with, as to payment of costs, and as to a number of other important matters likely to arise seems to be accurately and concisely stated. The book is evidently the work of a practical man who knows his business, but we doubt whether there is anything in it except what every clerk of the peace of experience has at his fingers' ends. At the same time if the advice of that officer is not immediately available at quarter sessions, no doubt justices will quickly find here the answer to any straightforward question of procedure that is likely to arise.

CORRESPONDENCE.

CASES OF LAST SITTINGS,
High Court-Queen's Bench Division.

KIRSHENBOIM (Appellant) v. SALMON & GLUCKSTEIN (LIM.) (Respondents). Div. Court. 7th May. TRADE-MARKS-FALSE TRADE DESCRIPTION-APPLYING FALSE TRADE DESCRIPTION WITHOUT INTENT TO DECEIVE-MERCHANDISE MARKS ACT, 1887 (50 & 51 VICT. c. 28), ss. 2, 3.

Case stated by Mr. Lushington, metropolitan police magistrate sitting at Bow-street. An information was preferred by the appellant against the respondents under section 2 of the Merchandise Marks Act, 1887, charging that the respondents did sell to the appellant certain cigarettes guaranteed handto which a false trade description-namely, the words " the Merchandise Marks Act, 1887. The magistrate dismissed the informade by experienced workmen," was applied contrary to the provisions of mation subject to this case. The respondents sold to the appellant for the sum of two pence and one farthing ten cigarettes in a packet, to which a printed label had been affixed bearing the words, "Ten cigarettes, hand-made by experienced workmen." The ordinary price for ten cigarettes made by hand of the same quality of tobacco would have been two pence and three farthings. The appellant bought the cigarettes for the purpose of ascertaining whether they were handmade or not, and not in the belief that they were hand-made, and not with the object of purchasing hand-made cigarettes for sale or consumption. It was admitted by the respondents that the cigarettes were not hand-made; and it was not suggested that the quality of the tobacco used was inferior to what it should have been, and the complaint was solely as to the method of manufacture. It was proved that the cigarettes were made for the respondents by a newly-invented or improved machine called Barron's machine, that the same qualities of paper and starch were used in their making as if they had been made by hand and in the same quantities. The magistrate found as a fact that the cigarettes made by Barron's machine were as pure and clean in point of material and as proper in point of construction for all smoking purposes as they could have been if hand-made. It was also proved that the printed label complained of as containing a false trade description within the meaning of the Act, was one of a parcel of two million labels for the ten-cigarette size of packet which had been printed for and used by the respondents before their adoption of Barron's machine, and while they still made these cigarettes by hand only, and that the respondents had continued to apply the remaining stock on hand (about half-asatisfied that in their continued use of the old labels after they had ceased million) of these labels to the ten cigarette packets. The magistrate was to make cigarettes by hand the respondents were influenced merely by a spirit of economy that prompted them to utilize the remaining stock of labels which they had already paid for, and thereby to save the cost of printing an equivalent number of new ones, and he held that there was no intention to deceive the buyer, or to induce him to purchase goods which he would not have purchased if the description in question bad been omitted from the label; and as a matter of law he held that the words of the label attached to the packet of cigarettes constituted a trade description applied to goods within the meaning of the Merchandise Marks Act, in which "goods" are defined as anything which is the subject of merchandise; and whereas a false trade description is defined by the Act to mean a trade description which is trade, manufacture, or false in a material respect as regards the goods to which it is applied, he held that in determining whether the label constituted a false trade description within the meaning of the Act, he was to interpret the terms of the statute in strict reference to the relations borne by the truth or falsehood of the description to the special and essential qualities and functions of the manufactured article; and he held that the label, although untrue in point of law as a trade description, was not a false trade description in any material respect as regarded the cigarettes sold to the appellant within the meaning of section 3 of the Merchandise Marks Act, and he therefore held that the respondents had not been guilty of any offence under the Act, and dismissed the information. The question now was whether upon the facts Act, 1887 (50 & 51 Vict. c. 28) enacts, section 2, sub-section 2, Every person who sells or exposes for sale any goods or things to which any forged trade-mark or false trade description is applied, shall, unless he proves (c) that otherwise he had acted innocently, be guilty of an offence against this Act." Section 3: "The expression 'false trade description' means a trade description which is false in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description where that alteration makes the

[To the Editor of the Solicitors' Journal.]

Sir,-Nobody seems to have replied to the above query of your correspondents of the 14th of May. Surely the matter is governed by the ordinary rule of practice, that the mortgagee's solicitor prepares his mortgage deed. The transferee cestuis que trust in the case put by your correspondents are simply new mortgagees.

Apropos of this question of realizing trust mortgage securities, there is often the more difficult question as to who should bear the costs. It seems clear that unless the mortgagor has had notice to repay, or he concurs in the transfer, he cannot be charged with the costs (Re Radcliffe, 22 Beav. 281). It then becomes a question as between the trust estate and the new mortgagees, the transferees. I have often justified charging the costs against the estate, where an immediate distribution was desired without giving and waiting for the expiration of notices requiring repayment. Also, I have justified charging the transferee with the whole, or part (dividing with the estate), of the costs, where the investment was a desirable one for the transferee. H. J. W.

Warrington, May 31.

description false in a material respect, &c."

66

THE COURT (Lord RUSSELL OF KILLOWEN, C.J., HAWKINS, DAY, WILLS, and WRIGHT, JJ.), allowed the appeal, and remitted the case to the magistrate to convict.

Lord RUSSELL, C.J.-The charge in this case was a charge preferred under section 2, sub-section 2, of the Merchandise Marks Act, 1887, and that sub-section provides that it is an offence against the Act to sell any set out in the case, and the learned magistrate upon those facts finds, and goods to which a false trade description is applied. The facts are fully very properly finds, that the description "guaranteed hand-made by experienced workmen "" is a 66 'trade description "within the meaning of this Act, and that it was falsely applied; and then he proceeds to explain what he means by that finding, and he thought that the goods supplied were at least as good as those ordered, and he further finds that

there was no intention to deceive the buyer. He therefore finds that this was a false trade description applied by the respondents, but he also finds that the falsity of that trade description was not material under the sircumstances. If he had contented himself with merely finding as a fact that the trade description, though false, was not materially false, probably it would have been the duty of the court to accept that as a finding of fact. What he has done, and quite rightly done, is this, he has set out the grounds and reasons by which he has arrived at his conclusion; and he has arrived at that conclusion by what I may call the doctrine of equivalents—that is, that though the purchaser did not get what was described by the particular description applied to the goods, yet he got other goods which were as good as those asked for. In dealing with the question it seems to me to be necessary to refer to the scheme of the Act. The general scheme of section 2 is this: It enumerates several things which are an offence against the Act, and then it points out how a party charged with any of these offences may meet the prima facie case made against him. If the charge is one under sub-section 1 of the section, then he may meet the prima facie case against him by showing that he acted "without intent to defraud." If the charge is under subsection 2, then there are two ways in which the charge may be met. Under clauses (a) and (b) of that sub-section he may meet it by proving that he took all reasonable precautions, and that he gave all the information in his power, and that obviously applies to cases where the person charged is buying goods from someone else, and is re-selling them to another person; or if he proves, under clause (c), that he had acted innocently, the onus is on the defendant to show that. I now come to the question of materiality. In dealing with that we ought to remember that the Act was aimed at and intended for the protection of buyers, and to prevent, say, goods coming from a foreign country being sold as home-made goods. Then in section 3 we have the definition of a "false trade description," which is there given as a trade description which is "false in a material respect as regards the goods to which it is applied." Under that it is no auswer to say that the buyer has got as good an article as was described. If that were an answer I do not see anything to prevent a person selling, say, an American ham as a Yorkshire ham, and then being entitled to say that the American ham was as good as or better than the Yorkshire ham. I cannot see that that is an answer. Applying that to the facts of this case I do not think it is an anewer to this charge to say that the cigarettes sold here were as good as hand-made cigarettes. There are people who think the handmade cigarettes the better. These considerations seem to me to shew that the ground on which the magistrate proceeded was not a right ground, and that he was wrong in the conclusion he arrived at, and that that conclusion cannot be supported. The buyer is entitled to know what he is buying and to have it properly described. Another point was taken for the respondents that they had acted innocently; but I cannot accept that reason. They did this thing of affixing a false trade description deliberately, and it is impossible, therefore, to say upon the facts of this case that they acted innocently within the meaning of the Act. The case therefore, must go back to the magistrate with the intimation of our opinion that he must convict. HAWKINS, DAY, WILLS, and WRIGHT, JJ., concurred.-COUNSEL, Corrie Grant; H. Avory. SOLICITORS, Radford & Frankland; Lewis & Lewis.

[Reported by Sir SHERSTON BAKER, Bart., Barrister-at-Law.] COPPEN v. MOORE. Div. Court. 14th May. MERCHANDISE MARKS ACT, 1887 (50 & 51 VICT. c. 28), s. 1-FALSE TRADE DESCRIPTION-LIABILITY OF SELLER FOR ACTS AND STATEMENTS OF HIS

SERVANT.

Case stated by justices of the borough of Richmond, Surrey. The appellant was convicted under section 1, sub-section (2), of the Merchandise Marks Act, 1887, of having sold goods to which a false trade description was applied. The facts were as follows: The respondent asked the salesman at the door of one of the appellant's shops for a small English ham. The salesman pointed to some hams and said they were Scotch hams. The respondent said he would buy one, and the salesman handed the ham to an assistant, saying, "Weigh up Scotch ham." The respondent required the assistant to make out an invoice with the words "Scotch ham " on it, which he did, and the respondent paid the price. The assistant and the salesman afterwards admitted that the ham was an American ham, as in fact it was. On behalf of the appellant, evidence was given that he had sent a notice to all his branch places of business, including that in question, in the following terms: Marsham-street, 25th of February, 1897. Most important. Please instruct your assistants most explicitly that the hams described in the list must not be sold under any specific name of place or origin-that is to say, they must not be described as 'Bristol, Bath,' Wiltshire,' or any such title, but simply as breakfast hams. To Mr. Bedford, Richmond. Please sign and return. H. W. Coppen." The ham in question would come within the category of breakfast hams. Evidence was given that the terms of this notice were communicated to the manager and assistants, and the appellant stated that he had no reason to believe that his instructions were not being carried out. The case was argued last month before a full court of the Queen's Bench Division, when judgment was reserved. THE COURT (Lord RUSSELL OF KILLOWEN, C.J., Sir F. JEUNE, P., CHITTY, L.J., and WRIGHT, DARLING, and CHANNELL, JJ.), affirmed the conviction. In delivering the judgment of the court, Lord RUSSELL, Č.J., after stating the facts, said: It is now necessary to consider the statute in question and its application to the facts proved. Section 2 is the important section. Sub-section (1) deals with the forging of any trade-mark and with the false application to goods of any such mark or of any false trade description, and enacts that, subject to the

provisions of the Act, an offence shall have been committed by such forging or application unless the party charged proves that he acted without intent to defraud. Sub-section (2) enacts (omitting words immaterial in this case) that any person who sells any goods to which any false trade description is applied shall be guilty of an offence against the Act unless he proves-(a) that having taken all reasonable precautions he had no reason to suspect the genuineness of the trade description; and (b) that on demand duly made he gave all information in his power with respect to the persons from whom he obtained such goods; or (c) that otherwise he acted innocently. By section 3 it is enacted that trade description" shall mean any description, statement, or other indication, direct or indirect, as to (among other things) the place or country in which any goods were made or produced. Later in such section it enacted that the expression "false trade description" shall mean a trade description false in any material respect as regards the goods to which it is applied. By section 5, sub-section (1), it is enacted that a person shall be deemed to have applied a trade description to goods who applies it to the goods themselves or uses a trade description in any manner calculated to lead to the belief that the goods in connection with which it is used are designated or described by that trade description. In Budd v. Lucas (1891, 1 Q. B. 408) it was decided that where certain casks of beer were delivered accompanied by an invoice in which the casks were falsely defcribed as "barrels" (which word had acquired the character of a trade description) it was held that an offence under section 2, sub-section (1) of the Act in question had been committed, although the invoice containing the false trade description was not physically attached to the casks. I think this case was well decided: in other words, I think that it is not necessary to constitute the offence that there shall be any physical connection between the false trade description and the goods to which it is applied. In these circumstances it is clear that an offence against the Act was committed by the salesman and by the assistant of the appellant. But the question which the court is now called upon to decide is whether the appellant also is not personally liable to be convicted. This was the question argued before us. The appellant's contention was that the charge here preferred was a criminal charge and that the general principle of law applied-nemo reus est nisi mens sit rea. There is no doubt that this is the general rule, but it is subject to exceptions, and the question here is whether the present case falls within the rule or within the exception. Apart from statute exceptions have been engrafted upon the rule. [His lordship then referred to Reg. v. Stephens (L. R. 1 Q. B. 702), Mullins v. Collins (L. R. 9 Q. B. 292), and Bond v. Evans (21 Q. B. D. 249).] The decisions in these and in other like cases were based upon the construction of the statutes in question. The court, in fact, came to the conclusion that, having regard to the language, scope, and object of those Acts, the Legislature intended to fix criminal responsibility upon the master for acts done by his servant in the course of his employment, although such acts were not authorized by the master and may even have been expressly prohibited by him. The question then in this case comes to be narrowed to the simple point, whether upon the true construction of the statute here in question the master was intended to be made criminally responsible for acts done by his servant in contravention of the Act, where such acts were done, as in this case, within the scope or in the course of their employment. In my judgment it was clearly the intention of the Legislature to make the master criminally liable for such acts, unless he was able to rebut the prima facie presumption of guilt by one or other of the methods pointed out in the Act. Take the facts here and apply the Act to them. To begin with, it cannot be doubted that the appellant sold the ham in question although the transaction was carried out by his servants. In other words, he was the seller although not the actual salesman. It is clear also, as already stated, that the ham was sold with a "false trade description," which was material. If so, there is evidence establishing a prima facie case of an offence against the Act having been committed by the appellant. But it is only a prima facie case. The burden of proof is shifted upon the appellant, and he might meet successfully that prima facie case if he is able, where the charge is under the first sub-section of section 1, to prove. that he acted without intent to defraud; or, where the charge is under sub-section 2 of section 1, if he is able to prove (a) that he had taken all reasonable precautions against committing an offence against the Act and had no reason to suspect the genuineness of the trade description in question, and (b) that on demand he had given full information, or (c) if he is able to prove that otherwise he acted innocently. It seems clear that clauses (a) and (b) of sub-section 2 apply to cases where goods in question are in the possession of the accused for sale or are sold with the forged trade-mark or false trade description already stamped upon them or otherwise applied to them, and not to a case like the present, where the false trade description is applied upon the occasion and as part of the terms of sale; and in the latter case the accused must rely for his exculpation upon clause (c) —namely, by showing that he had acted innocently. In the present case there was ample evidence to justify the conclusion of the magistrates that the appellant was prima facie guilty of the offence charged, and that prima facie case has not been met in the manner required by the Act. The magistrates, indeed, have affirmatively found-in the terms of clause (a)-that the appellant had not, in fact, taken all reasonable precautions against committing an offence against the Act, but I have already pointed out that that clause does not directly apply to the facts of this case. finding is, therefore, not strictly relevant, although it suggests an important element in determining whether the accused is innocent; but what is material to note is that the magistrates do not appear to have been asked to find, and certainly they do not in fact find, that the appellant acted innocently within the meaning of clause (c). There was evidence before them that the American hams in question were dressed so as to

This