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(a.) In respect of the average rent 2s. for every £10 a year, and NEW ORDERS, &c.
(6.) In respect of the premium (if any) the same fee on its THE LAND TRANSFER ACT, 1897.
amount as above prescribed for à transfer for value of land.
Provided that no greater fee than £10 be paid in any case.
(D.) For entry of first proprietorship of land with an absolute or At the Court at Windsor, the 18th day of July, 1898. Present : The qualiñed title :Queen's Most Excellent Majesty in Council.
Three times the fee prescribed for registration of a possessory
title, with a minimum fee of £3. Pursuant to the 20th section of the Land Transfer Act, 1897, Her Majesty, by, and with the advice of Her Most Honourable Privy prior to registration, and of a transfer or transmission thereof:
(E.) For registration of the proprietorship of an incumbrance, Council, is pleased to order and declare, and it is hereby ordered and declared, with respect to the county of London, as follows:
The same fee as for registration of a charge or of a transfer or
transmission thereof respectively. Registration of title to land is to be compulsory on sale in the (F.) For a land certificate, or certificate of charge, except where several portions of the county mentioned in the first column of the required by the Acts or Rules to be issued free of charge : Schedule hereto, on and after the respective days mentioned in the
£ 8. d. second column of the same Schedule.
Where the value of the land or charge does not In this Order “parish” means a place for which a separate poor
0 10 0 rate is or can be made, or for which a separate overseer is or can be Exceeds £200, but does not exceed £1,000
1 0 appointed, and the boundaries of each such parish shall be those
2 0 0 constituted and limited at the date of this Order.
(G.) For altering a land certificate to correspond with the This Order may be amended or added to or repealed by Order in Register, except where such alteration is required by the Acts or Council.
J. H. HARRISON. Rules to be made free of charge :
Half the fee for a certificate.
£ s. d. Days on and after which (H.) For registering an inhibition
1 0 0 Portions of the County.
registration of title to land
1 0 0 is to be compulsory on sale.
For entering notice of an estate in dower or by the
1 0 0
For preparing or settling a statement for the Court 1 0 The parishes of Hampstead, Saint Pancras,
0 Saint Marylebone, and Saint George's,
0 10 0 For registering a caution or restriction ... 18t November, 1898. For alteration or withdrawal of an inhibition
0 10 Hanover-square
0 The parishes of Shoreditch, Bethnal Green,
For discharging or altering conditions
0 10 0 Mile End Old Town, Wapping, Saint
For entering a note or notice under the 18th section of 1st March, 1899.
the Act of 1875 George's-in-the-East, Shadwell, Ratcliff,
0 10 0 Limehouse, Bow, Bromley, and Poplar
For an entry negativing or altering implied covenants, The remainder of the County (not including
powers, priorities, &c.
0 10 0
For examination of a married woman by an officer of
1st October, 1899.
0 10 0 Woolwich
For comparison of abstracts with deeds, by officers of The remainder of the County, not including
the Registry--per hour ...
0 10 0 the City of London 1st January, 1900. For entering an additional address for service...
0 10 0 The City of London
For inspection of the Register after removal of land
0 5 0 (6) after one year from the removal
0 10 0 LAND, ENGLAND.
For a certificate of result of official search-per title... 0 5 0
For alteration or withdrawal of & caution or restriction 0 5 0
0 5 0 LAND TRANSFER ACTS, 1875 and 1897.
For inspection of any document not referred to on the [Draft. ]
0 5 0 ORDER AS TO FEES.
For any entry on the Register, for which no other fee is Note.—The following fees must be considered in connection with provided
0 5 0 the Rules hereinafter contained.
For noting the determination of a lease, or of an (A.) For entry of first proprietorsbip of land with a possessory
estate in dower, or by the curtesy
0 2 6 title; for registration of charges, and transfers of land and charges, For taking an affidavit or declaration
1 6 for valuable consideration ; and for removal of land from the
For each exhibit thereto
0 1 0 Register :
For entering notice of a mortgage by deposit of
0 1 0 Value of Land or Amount of Charge.
0 1 0 For office copies-per folio...
0 0 3 For copies of plans...
... Such charges, according to Not exceeding £1,000 18. 6d. for every £25 or part of
time and labour employed, £25.
as the Registrar shall from Exceeding £1,000 and not ex- £3 for the first £1,000, and 18.
time to time authorize. ceeding £3,000. for every £25 or part of £25
RULES. over £1,000.
1. The above fees include, in the matters to which they relate, all Exceeding £3,000 and not ex- £7 for the first £3,000, and 1s. necessary stationery and mapping done in the Registry; the preceeding £10,000.
for every £50 or part of £50 paration, issue, endorsement, and deposit of certificates wherever suoh over £3,000.
issue, endorsement, or deposit is obligatory; discharges of incumExceeding £10,000
£14 for the first £10,000, and 18. brances; the filing of auxiliary documents (if any); and all other
for every £100 or part of £100 necessary costs of and incidental to the completion of each registraover £10,000, up to a maxi- tion or transaction. They also include, in districts where registration mum of £25 for £32,000. of title is compulsory, any surveying that may be necessary to enable
the land to be identified on the ordnance map. (B.) For registration of transmissions, and of transfers not for 2. Where an application for first registration with absolute title is value (including exchanges), notices of leases, rectifications of the completed with a qualified title only, such abatement (if any) in the Register under the 95th section of the Act of 1875, and entries and fee may be made as the Registrar may deem reasonable, under the corrections under Rules 97 and 117 :
circumstances of the case. One-quarter of the above fees, according to the capital value of 3. The fees payable in respect of any matter involving an inquiry
the interest dealt with, with a minimum of 1s. and a into title are exclusive of the fees of conveyancing counsel, maximum of £5.
and of any costs or expenses incurred by the Registry in regard to (C.) For entry of first proprietorship of leasehold land on the the matter. occasion of the original grant of the lease ; for entry of first pro- 4. Where land, already registered with a possessory title, is to be prietorship of freehold land with a possessory title on the occasion of registered with a qualified or an absolute title; or where land, a grant, wholly or partly in consideration of a rent; and for regis- already registered with a qualified title, is to be registered with an tration of the transferee on a transfer of freehold land on a like absolute title, the Registrar may make such abatement (if any) in. occasion :
the fee as he shall deem reasonable.
5. The fee for an entry in, or withdrawal from the Register A. L. SMITH, L.J., said that sub-rection 5 of section 35 could not be affecting several titles whereof the same person is registered as pressed into the service and construed as a general provision not limited proprietor, shall be the same as for an application respecting one to boroughs with a population of 10,000 and upwards. The Legislatitle only. In other cases an extra fee of 28. 6d. shall be charged ture had dealt differently with quarter sessions boroughs having a populafor every title affected after the first.
tion of 10,000, and quarter sessions boroughs having a smaller population. 6. Where a transfer for value and a charge are registered together | 7 of section 38 they could petition Her Majesty to revoke the grant of a
The smaller boroughs were not without a remedy, because by sub-section only half the fee shall be paid in respect of the charge.
court of quarter sessions and also a grant of a commission of the peace. 7. Where an application is made by post, the fee may be paid by In his opinion the decision in Ex parie Kent County Council and Borough of banker's draft, or by postal or post office order, or in Bank of Sandwich was wrong. As regards the salary of the clerk to the borough England notes.
justices in petty sessions, section 84 of the Act of 1888 did not tranfer the 8. The fee for the first registration of leasehold land shall include obligation of paying his salary on to the county council. That section dealt the entry of a notice of the lease against the lessor's title, it with salaried clerks of county petty sessional divisions and not with registered.
salaried clerks of borough petty sessional divisions. Therefore the 9. When a transfer of freehold land in consideration of a rent, or a plaintiffs were liable to pay the salary of their own clerk to their own transfer by which mines and minerals are dealt with separately, is borough, petty sessions. In his opinion the decision in Re Herefordshire
County Council was wrong: registered, the fee shall not include the registration of the proprietor
Rigby, L.J., read a judgment to the same effect. of the rent, or of the severed land or mines and minerals respectively,
Vaughan WILLIAMS, L.J., also read a judgment agreeing with the as the case may be, for which a separate fee shall be payable as on above, saying that upon consideration he had come to the conclusion that a transfer of land.
his decision in Ex parte Kent County Council and Borough of Sandwich was 10. The fee payable for registration of proprietorship, of an incum- wrong.–COUNSEL, Crump, Q.C., Rufus Isaacs, Q.C., and Le Riche ; Sir R. brance, if made on the first registration of land, shall be reduced to 7. Reid, Q.C., and w. Wills. SOLICITORS, Ford, Lloyd, Barllett, & Michelone quarter of the fee above prescribed.
more, for J. Houchen, Thetford ; Sharpe, Parker, & Co., for C. Foster, Nor11. The fee for every entry of, and in respect of, a caution, wich. inhibition or restriction, condition, note or notice of any kind, shall
[Reported by W. F. BARRY, Barrister-at-Law.] not be payable when such entry is made on the first registration of
Re J. BATT & CO.'S TRADE-MARKS. No 2. 13th and 22nd July. land, or on any registration for which an ad valorem fee is payable.
TRADE-MARK-REGISTER OF TRADE-MARKS—REGISTRATION FOR Class OF 12. The amount of an average rent for the purposes of these fees
Goods IN WHICH THE PERSON REGISTERING DOES NOT DEAL AND HAS NO sball be ascertained in the same manner as for the purposes of Inland
DEFINITE INTENTION OF DEALING-REMOVAL FROM REGISTER-PATENTS, Revenue Stamp Duty.
DESIGNS, AND Trade-Marks Act, 1883 (46 & 47 VICT. C. 57), ss. 75, 90 13. Where a charge or incumbrance is also secured on unregistered -PATENTS, DESIGNS, AND TRADE-MARKS Act, 1888 (51 & 52 Vict. c. 50), land as well as on registered land, an abatement in the fee shall be s. 17-PRACTICE-APPEAL-JUDGE's NOTES-APPLICATION TO BE MADE IN made, proportional to the value of the unregistered land as compared GOOD TIME. with the value of the whole security.
This was an appeal by Mr. Kottgen, trading as John Batt & Co., from a 14. The word “land ” includes both freehold and leasehold land, decision of Romer, J., who had held that a dealer could not register a and every hereditament the title to which may be registered under trade-mark for classes of goods in which he did not deal, and had not at the Land Transfer Acts.
the time any definite intention of dealing ; and who had accordingly 15. When boundaries are to be noted the Register as ordered John Batt & Co.'s trade-mark to be removed from the register. accurately defined, such additional charges may be made for The case was argued on the 13th of July, and judgment, which was then mapping and surveying as the Registrar shall in each case direct. reserved, was delivered on the 22nd. 16. Where land is transferred subject to charges or incumbrances,
THE COURT (LINDLEY, M.R., and CHITTY, and COLLINS, L.JJ.) dismissed no deduction from the value of the land is to be made in respect
the appeal. thereof, except where the transfer is to a mortgagee, in which case
LINDLEY, M.R., read the judgment of the court as follows: One tradethe value of the equity of redempticn shall be taken to be the value mark, No. 27,850, was registered in July, 1882, in the name of J. Batt & of the land.
Co., for several classes of goods, including class 42. The other trademark, No. 72,790, was registered in August, 1888, in the same name, for class 42 alone. Both trade-marks consisted of a butterfly with open
wings. Class 42 was as follows: " Substances used as food or CASES OF THE WEEK.
ingredients in food." It includes cereals. Messrs. James Carter & Co.,
the well-known seed merchants, applied to register a butterfly with closed Court of Appeal.
wings for oats, which were comprised in class 42. The Comptroller
refused to register this as there were already on the register the butterflies CORPORATION OF THETFORD ». NORFOLK COUNTY COUNCIL. No.r. of J. Batt & Co. for class 42. Thereupon Messrs. Carter & Co. applied to 25th July.
expunge these marks. The main ground for expunging them, and for the
decision of the learned judge, was that J. Batt & Co. never dealt in goods LOCAL GOVERNMENT—COUNTY COUNCIL-BOROUGH UNDER 10,000 HAVING SEPARATE QUARTER Sessions-Costs or Sessions —LOCAL GOVERNMENT goods in that clase. The appeal was based on two grounds—(1) that the
in class 42, and were not justified in registering any trade-mark for Act, 1888 (51 & 52 VICT. C. 41) ss. 35, 38, 84.
evidence did not warrant the conclusion of fact arrived at by the learned Appeal by the plaintiffs and cross appeal by the defendants, from the judge, and (2) that, even if the fact was as he stated, such fact was judgment of Wills, J., at the trial of the action. The borough of Thet- not sufficient to entitle the court to remove the marks from the register. ford contained a population of less than 10,000, and was situate, for As regards the fact of user, everything depends on the evidence of Mr. administrative purposes, in the county of Norfolk. It had a separate Kottgen. He carried on business in the name of John Batt & Co., and court of quarter sessions, presided over by a recorder, and a clerk of the be registered the marks in question. He said he was an exporter of and peace, both of whose salaries before and since the Local Government Act, dealer in every kind of goods, including articles of food. But in cross1888, were paid out of the borough fund. The borough bad also a examination he refused to give any information as to the kind of goods separate court of petty sessions, and the clerk to the borough justices in in class 42 which he exported or dealt in. He said in re-examination petty sessions was paid a salary out of the borough fund. The plaintiffs that he had exported or dealt in confectionery, biscuits, and butter. It claimed a declaration that under section 38 of the Local Government Act, came out clearly that he never exported or dealt in oats. But he intended 1888, the liability to pay the salaries of the recorder, the clerk of the to export or deal in anything he could. His demeanour in the witnesspeace, and the clerk to the borough justices in petty sessions, was trans- box was such as to lead Romer, J., to say that he was a very unsatisfacferred to the county council, and they claimed to be reimbursed the tory witness, and was not to be relied upon when he spoke of the user salaries so paid by them. Wills, J., refusing to follow the decision of a of his trade-marks in connection with any goods comprised in class 42. divisional court (Stephen and Vaughan Williains, JJ) in Ex parte Kent His manager, Greimer, has made an affidavit stating, like his master, County Council and Borough of Sandwich (1891, 1 Q.'B. 389, 39 W. R. Dig. that J. Batt & Co.'s business extended to goods comprised in class 42, 114), held that the obligation to pay the salaries of the recorder and of but giving no instances, and after his master's cross-examination it was the clerk of the peace were not transferred to the county council, but, not thought necessary to cross-examine Greimer. There was one other following the decision in R. Herefordshire County Council (1895, 1 Q. B. 43, piece of evidence of very great importance, which was that J. Batt & Co. 43 W. R. Dig. 101), that the salary of the clerk to the justices in petty had a large number of trade-marks, and that the register contained no sessions was so transferred. By section 35 of the Local Government Act, less than 169 entries in their name. Stevens, a member of the firm, 1888, in the case of the quarter sessions of boroughs, not being county had offered all these except fourteen for sale, and the fourteen not for boroughs, containing a population of 10,000 or ds, the following sale did not include any registered mark applicable to class 42. Under provisions shall apply : (5) "The payment of the costs of assizes these circumstances we are unable to come to the conclusion that and sessions skall be a general county purpose for which the parishes in the
learned judge wrong
in his view of the facts. the borough may be assessed to county contributions, and all costs of This brings us to the question of law. We will assume that Mr. prosecutions mentioned in section 169 of the Municipal Corporations Act, Kottgen, when he obtained registration of his marks, was a general 1882, shall be paid out of the county fund.” Section 38 applied to exporter and dealer, exporting and dealing in goods of various descrip. boroughs having a separate court of quarter sessions and containing a tions, but not, in fact, exporting or dealing in goods in class 42, although population of less than 10,000, but there was no provision similar to that ready to do so if opportunity offered. We will assume, further, that he in sub-section 5 of section 35.
has always been, and is still, ready to do so, but that he has not even yet The Court (A. L. SMITH, RIGBY, and VAUGHAN WILLIAMS, L.JJ.) i exported or dealt in any goods in that class except confectionary, biscuits, dismissed the appeal and allowed the cross-appeal.
and butter, which exception we will assume in his favour. A question of
says that “
law then arises, which may be stated shortly as followe. Can a man properly register a trade-mark for goods in which he does not deal or
JACOB v. JACOB. No. 2. 22nd July. intend to deal; meaning by intending to deal, having at the time of Will-REAL ESTATE-INTEREST ACQUIRED BY TESTATOR AFTER DATE OF registration some definite and present intention to deal in certain goods, WILL, WHETHER DISPOSED OF_REVOCATION OF DEVISE BY OPERATION OF or descriptions of goods, and not a mere general intention of extending LAW-INTENTION-OLD LAW BEFORE WILLS ACT, 1837 (7 W. iv. AND 1 his business at some future time to anything which he may think desir- VICT. C. 26)-REHIDUARY DEVISE. able ? This question we answer in the negative. To answer it otherwise will be unduly to strain the language of the Acts relating to trade-marks,
This was an appeal from a decision of Stirling, J. The testator, by his and to render those Acts extremely mischievous instead of beneficial tó will, dated the 25th of July, 1832, devised certain specific property to trade and commerce. The Trade-Mark Registration Acts presuppose some
such and the same uses, and upon such and the same trusts, estates, intents, business or trade in some kind of goods made, sold, of otherwise dealt and purposes as were laid and declared in and by his marriage settlement with in the way of business. Although section 75 of the Act of 1883 said (executed in 1825), or such of the same as at the time of his decease that "registration of a trade-mark shall be equivalent to public use of the should be subsisting and capable of taking effect. The will also contrade-mark” this language, even when in force, did not and could not tained a residuary devise to other persons, of “all other my messuages mean that continued registration was equivalent to continued user. So to settlement the testator also covenanted to convey the said specific
and real estate whatsoever and wheresoever." By the same construe the language would lead to the irrational conclusion that a man might properly register a trade-mark for any goods he chose, although he property, which, it was recited, he had then contracted to purchase, to carried on no trade or business in them at all. Such a person if properly to uses to bar do wer. All the uses limited by the settlement, except an
the uses of the settlement. Subsequently he took a conveyance to himself on the register might then object to anybody else registering that mark (see eection 72) without buying him off. Section 75 was addressed to the ultimate limitation to the use of the testator as eettlor and his heirs, time of registration; it substituted registration for previous user and afterwards failed. The question now raised was whether the specific reputation gained by it. The corresponding section of the prior Act of devise included the ultimate limitation to the testator
and his heirs, or 1875 (viz., section 2) was discussed in Edwards v. Dennis, Re Edwards' whether that interest passed under the residuary devise. Stirling, J., Trade-mark (30 Ch. D. 454), and the contention that the language of that beld that the reversionary interest passed under
the residuary gift, and the section meant more than we have stated was emphatically repudiated by persons
interested under the
specific devise appealed. the Court of Appeal, although it had found favour in the court below.
THE COURT (LINDLEY, M.R., and Chitty and COLLINS, L.JJ.) dismissed That decision fairly looked at really governs this case in principle. It is
the appeal. true that in Edwards v. Dennis the court had to deal with the assignee of a
LINDLEY, M.R., said : We do not see our way out of the authorities in trade-mark; but the rights acquired by his assignor on registration were
favour of the view contended for by the respondents. I am not going to
comment on all the cases. very carefully examined, and Bacon, V.C., at p. 465, and also Cotton,
I do not think that is necessary. The most L.J., on p. 474, and I myself, on pp. 476, 477, ali expressed clear opinions important authority against the appellant is the case of Rawlins v. Burgis that the assignor had no right to register his trade-mark for goods with (2 V. & B. 382). That case shows that the testator's apparent intention which he had no concern. Fry, L.J., went less fully into this question, may in such cases be defeated by a rule of law. That is step number but it is plain that his view was the same (see p. 479). The Act of 1883 one. If you take that step I do not see how you are to get out of the must of course be looked at to see whether its language has rendered it reasoning of Kindersley, V.C., in Plowden v. Hyde (2 Sim. N. S. 171). necessary to come to a different conclusion
on this point, and
I do not say that if the matter were res integra I should decide this case we have looked at it carefully, but we cannot find that it has. in the same way; but I do say that we should be simply splitting straws, Section 75 of the Act of 1883, on which Mr. Levett, based his argument, Cases of the kind can now very seldom arise. I would give effect to the
and doing more harm than good, if we were to differ from that decision. was repealed by section 17 of the Act of 1888, and that section, which is retrospective, makes "application for registration " instead of " registra- appellants' contention if I could ; but on the authorities I think the tion” equivalent to public use. This alteration makes it still plainer than appeal must be dismissed. before that the public use referred to is not use since registration, but use
CHITTY, L.J., said: I am of the same opinion. It is now sixty years and reputation at the time of application. Section 65 of the Act of 1883 since the great change made in the law by the Wills Act of 1837, but
a trade-mark must be registered for particular goods or classes the old law, as it stood before that Act, has still occasionally to be of goods.". This leaves open the question
what goods or classes of goods applied. The old law was strict and logical, and it is quite plain that are referred to. Does the section refer to goods or classes of goods which this doctrine, we are now considering arose from the limited powers the applicant for a registered mark makes
or deals in or intends to make conferred by the statutes of Henry, 8 as to testamentary disposition of or deal in in the sense above explained, or does it refer to goods or classes real estate. I think that the decision of Kindersley, v.o., stands as an of goods which he does not make or deal in, and which he has no definite authority, and that we cannot at this time of day interfere with it. If intention of making or dealing in ? Common sense and Edwards v. Dennis we did we should simply be creating some new refinement or subtle (ubi supra) concur in confining the goods or classes of goods to those which a
distinction, though perhaps, in the circumstances, it would not have very man makes or deals in or intends to make or deal in when he applies for and I would rather leave the law as it was decided to be at least sixty
much operation. Still, there may be some subsequent cases of the same sort; registration. It remains only to consider whether section 90 of the Act of 1883 (the rectification section) is applicable to this case.
We are of years ago. opinion that it is. That section provides that the court may on the St. John Clerke, and Bailhache; Grosvenor Woods,' Q.C., and Methold.
COLLINS, L.J., concurred.-COUNSEL, Cozens-Hardy, Q.O., Jenkins, Q.C., application of any person aggrieved by the omission without sufficient SOLICITORS, Warriner of Co., for Llewellyn g Moore, Newport ; Hier Jacob. cause of the name of any person from any register kept under this Act, or by any entry made without sufficient cause in any such register, make such
(Reported by R. C. MACKENZIE, Barrister-at-Law.] order for making expunging or varying the entry as the court thinks fit." The applicants are parties aggrieved; for the trade-mark they desire to have registered is kept off the register by reason of the presence on it of the marks of J. Batt & Co. The entry of these marks is “an entry made without sufficient cause in the register.” We are not disposed to put a
High Court-Chancery Division. narrow construction on this expression; nor to read it as if the word "made" were the all-important word, and as if the words "made without sufficient
Re ALLEN. BASSET V. ALLEN North, J. 21st July. must be read as if they were “made without sufficient cause at MORTGAGE-ESTATE SPECIFICALLY DEVISED-Locke King's AcT-STATUTE the time of registration,” 60 as to be confined to that precise time. If
OF LIMITATIONS. any entry is at any time on the register without sufficient cause, however The testator mude a will in 1854 and a codicil in 1855 specifically it got there, it ought, in our opinion, to be treated as covered by the devising certain real property to his widow for life with remainder to his words of the section. Its continuance there can answer no legitimate two sons equally, and in other respects confirmed his will. By his will purpose ; its existence is purely baneful to trade and, in our opinion, in he directed payment of his debts." The testator had become entitled to the case supposed the court has power to expunge or vary it. But the equity of redemption, subject to a mortgage for £3,000, in certain however this section is construed, the present case falls well within it. It property, part of which he devised by his codicil. In 1865 the £3,000 was may be said that this decision may impose undue restrictions on the paid off out of the proceeds of the sale of residue. The widow under the acquisition of trade-marks by general dealers in goods of many sorts. testator's will was equitable tenant for life. The questions now raised Wē do not, however, believe it will fetter legitimate trade. A man can were (1) was the £3,000 payable out of residue, or in part out of the proalways apply to register a mark or marks as he really wants them. But if perty specifically devised; and (2) if payable out of the property a man procures a mark to be registered for goods in which he does not specifically devised, had the Statute of Limitations run? The widow deal, either when he applies for registration or within a reasonable time died in 1895, and it was argued that wbile she lived the Statute of afterwards, he does so at bis peril (to use Fry, L.J.'s expression), and he Limitations had no application. exposes himself to the risk of having his mark expunged or varied, and of NORTH, J.-The will was before the original Locke King's Act, and if having the monopoly conferred by registration restricted to his legitimate there had been no codicil, there would have been no question. The requirements. The trademark 72,790 is confined to goods in class 42, codicil confirms the will 'except as regards the property specifically and the learned judge was right in expunging that entry. The trade devised. Does the direction to pay debts include mortgage debts ? If mark 27,850 ought to be expunged as to goods in class 42, but on the the testator had died before the Act came into operation, the debts would evidence before us there is no reason for expunging it from the register have been payable out of personal estate and not out of property as regards other goods. The order ought to be corrected in this respect. specifically devised. But the testator made a codicil confirming the will, and But this variation, which rectifies what is probably a slip made in drawing that had the same effect as if he had made a new will
in the same words as up the order, will not affect the appeal, which must be dismissed with the old one. The later Act only applies after 1867. The residuary estate, costs.-COUNSEL, Levett, Q.C., and Sebastian ; Neville, Q.C., and J. Austen and not the estate specifically bequeathed, has to bear the testator's own Cartmell; Ingle Joyce. SOLICITORS, Shepheards ; Mann & Taylor ; Solicitor debts, but the £3,000 is not a debt of the testator, who only took an equity of for Board of Trade.
redemption, and was under no personal liability to pay, so that the [Reported by R. C. MACKENZIE, Barrister-at-Law.]
directions to pay debts had no application.
The question whether the Statute of Limitations applied was then upon his premises he is bound to keep it there at his own peril, but there argued. Topham v. Booth (35 Ch. D. 607) and Re England (1895, 2 Ch. is an exception to that rule there laid down-namely, that where a man 820) were cited.
uses his land in an ordinary and reasonable manner and damage ensues NORTH, J.-In my opinion Re England applies. The whole estate was to his neighbour without wilfulness or negligence, no action lies. charged with the debt." In 1865 the residuary estate was sold and the I think the case comes within this exception. Here there was a usual and £3,000 paid, and nothing was done to keep alive the charge of part of the reasonable user of the house, and if water escape i without any negligence £3,000 upon the estate specifically devised. The widow died in 1895, and on the part of the owner, then, as between the owner and the occupier, the question is, Whether the £3,000, which was wholly paid out of residue, the owner is not liable. Then there is another exception to the general rule ought not to have been paid in part out of the estate which was specifically as to the liability, that where the party has consented to the dangerous devised ? It is suggested there was something equivalent to payment of matter being brought to the premises, then he cannot recover. Here the interest, but I do not see how anything of the sort is made out in this plaintiffs may be said to have consented to the water being brought there case. The widow was under no obligation to pay the interest upon the and they consented to their own part of the premises being supplied with sum that she was not compelled to pay. I think that the Statute of the water. Instances of these principles may be found in the cases of Limitations is a bar to the recovery of any sum now. -COUNSEL, E. P. Carstairs v. Taylor, Ross v. Fedden (L. R. 7 Q. B. 661), and Gill v. Edouin Hewitt, Ingpen, Vernon Smith, Q.C., Smith, Attwater. Solicitors, Preston, (71 L. T. 762, and 72 L. T. 579). There is nothing here to shew that the Stow, Preston (for E. P. Berridge, Leicester); J. T. Rossiter.
defendant did not do all a man could do to have the defect remedied. (Reported by G. B. HAMILTOX, Barrister-at-Law.]
He employed a competent plumber, but it has been said that if the work was done negligently then a person cannot defend himself from liability by shewing that he employed an independent contractor. I do not know
of any case in which that doctrine is established. The ordinary doctrine High Court-Queen's Bench Division. is that a person is not liable for the acts of an independent contractor BLAKE & CO. (LIM.) v. WOOLF, Div. Court. 14th July.
On these grounds I think that the judgment of the deputy judge in the
court below cannot be sustained. LANDLORD AND TENANT - House LeT TO TENANTS—CISTERN BELONGING TO DARLING, J., concurred. -Counsel, Ritter; H. Tindal Atkinson,
LANDLORD-ESCAPE OF WATER FROM-DAMAGE TO TENANTS' Goods- SOLICITORS, H. Dade g Co.; Phelps, Sidgwick, f Biddle.
(Reported by Sir SHERSTON BAKER, Bart., Barrister-at-Law.!
Winding-up Cases. a certain part of the house, consisting of the basement and the ground Re MOORE BROTHERS & co. (LIM.). Wright, J. 9th June and 19th floor, which they had taken from the defendant as the landlord. The
July. water for the whole house was supplied from the defendant's (the landlord's) cistern at the top of the premises, and the plaintiffs took the Company_WINDING UP-STATEMENT IN PROSPECTUS—Director's LIABILITY. premises after the water was laid on, and they took their supply of water Application for a balance order against a Mr. Bartholomew, one of the from the defendant’s cistern. On a certain Friday the plaintiffs dis- directors of the company, the question being whether he was liable to be covered that there was a leakage of water from the cistern, and placed on the list of contributories as an ordinary shareholder by reason that there was an escape of water therefrom. On the same day they of statements made in the prospectus. The company was registered in gave notice to their landlord (the defendant) that the cistern leaked September, 1893, under the Companies Acts. The articles of association and requested him to have it set right. The defendant, on receiving contained these clauses amongst others: Clause 77, “Until otherwise this notice on the Friday, went to an independent and competent determined by a general meeting the number of the directors shall not be plumber and employed him to set the matter right. The plumber came less than three or more than 6. The following gentlemen shall be the and did something to the cistern, but was negligent in what he did, first directors of the company-viz., Alfred Watson, James Moore, Wil; with the result that the leakage became worse, and when the premises were liam Moore, Henry Blatch Wells, Melton Bartholomew, Robert Colman." opened on the Monday the plaintiffs' place was found to be flooded and Clause 78, " The qualification of every director shall' be the holding of their goods damaged. The plaintiffs then brought this action against shares or stock of the company of the nominal value of £500.". On the their landlord and claimed the sum of £15 for the damage so caused by 28th of October, 1893, the directors held their first meeting, at which all the the flooding from the cistern. The deputy judge found that there was directors attended. From the minutes of that meeting it appeared that no negligence on the part of the defendant in employing the plumber he the draft prospectus was approved and settled and the secretary was went to, although he did not know him, and he found that the damage instructed to place the same in the printer's hands. The prospectus, was in fact caused by this plumber not having made the cistern right on which invited applications for preference and debenture capital, 80 ap. the Friday when he was called in, and that in fact be did not proved, stated that the capital of the company was "1,500 ordinary get rid of the mischief. The deputy judge held that when the shares of £20 each (the whole of which will be taken by the directors) landlord received notice of the leakage on the Friday it became 750 £6 per cent. preference shares of £20 each and 300 £5 per cent. his duty to take means to remedy it, and that it was his abso. debentures of £50 each. It also gave the names and addresses of the lute duty, to have it remedied, and that, not having remedied it, six directors and stated, amongst other things, “The vendors after it was his own fault and that he was liable; and he accordingly discharging every liability up to the date of purchase will re-invest the gave judgment for the plaintiffs on the question of liability for an amount whole of the purchase-money in the company principally in the ordinary to be afterwards ascertained by the registrar, with leave to the defendant stock, on which they will receive no dividend until
the £5 per cent. interest to appeal. The defendant now appealed. For the defendant it was now on the debentures and the £6 per cent. dividend on the preference shares contended that upon the facts there was no evidence
of any negligence on have been paid. Seeing that, with the other directors, they take the whole the part of the defendant; that he had gone to an independent contractor, of the ordinary shares, investors have the best possible assurance that every who was a competent plumber, and instructed him to set the matter right; effort will be made to ensure the prosperity of the company's business. and, although this plumber may have been guilty of negligence, thé Neither Messrs. Watson, Wells, Colman, or Bartholomew were ever placed defendant was not liable for the vegligence of an independent contractor : on the register of members of the company, nor were ordinary shares allotted Carstairs v. Taylor (L. R. 6 Ex. 217) and Rylands v. Fletcher (L. R. 3 H. L. them. 330). For the plaintiffs it was contended that the defendant, having this WRIGHT, J., held if the question had arisen between the directors water on his premises, was bound to take reasonable care to keep it safely, and those who applied for preference shares and debentures on and that, as between himself and his tenants, he was bound, when he the faith of the prospectus, there would be little doubt as to the received notice that the cistern was out of repair, to put it in repair, and liability of the directors and the company. But the question was that there was a duty cast on the defendant to repair it; and that, once between Mr. Bartholomew and the company, and the question establish that there is a duty on the part of the landlord to keep the to be decided was whether there was in the prospectus a representation premises in a state of repair, then the employment
of an independent of a contract to take shares on which he could be held liable. No estoppel contractor by the landlord cannot relleve him of the obligation and arose between the directors and the company. But at the same liability : Miller v. Hancock (41 W. R. 578; 1893, 2 Q. B. 177), Hughes v. time there was a ground on which Mr. Bartholomew could be held liable Percival (31 W. R. 725, 8 App. Cas. 443), Dalton v. Angus (30 W. R. 191, on the same principle as that on which it had been held that, although 6 App. Cas. 740), and Tarry v. Ashton (24 W. R. 581, 1 Q. B. D. 314). articles of association were not contracts themselves, directors, by acting
The Court (Wright and DARLING, JJ.) allowed the appeal and gave on them, shew that they have entered into a contract on the terms of the judgment for the defendant, refusing leave to appeal.
articles, and a prospectus could be looked at in the same way. When, thereWRIGHT, J.-It
is not at all clear that this case is covered by any of fore, these directors put forward this document they must be taken to the authorities. The case stands in this way: The defendant was land- have consented to act as directors on the terms of that prospectus, one of lord of the premises, and he had the water supply of the cistern under his which was that they were to take up all the ordinary shares. It was not control. The plaintiffs were tenants from him of the lower part of the necessary to say whether the directors could have made the company premises. On a certain Friday a leak was discovered and the defendant allot them all the ordinary shares-that was another question; but probably was given notice of it. The landlord employed a competent person to the company could have made them take up such of these shares as they set it right, but this person did the work negligently and the consequence
were called on to take. The directors, therefore, including, Mr. was that when the premises were opened on the Monday the place was Bartholomew, were jointly and severally liable in respect of such ordinary flooded and the
plaintiffs' goods damaged. The question now arises shares as were not allotted to other members, and an order must be made whether the landlord is liable for that damage. It is to be observed against him with costs.-Counsel, Grosvenor Woods
, and Sheldon ; that the counsel for the plaintiffs has not put his case on any
TV hinney; T. L. Wilkinson ; Haldané, Q.C., and Gore-Brown. SOLICITORS, contractual obligation arising from the relation of landlord and tenant. G. A. King ; Taylor, Hore, f Pilcher, for Nodder & Trethowan, Salisbury ; Then,
apart from contractual liability, the rule of the common law is that Long & Gardiner, for Arthur Whitehead, Salisbury. laid down in Rylands v. Fletcher, that if a person brings a dangerous thing
[Reported by C. W. MEAD, Barrister-at-Law.]
Re AURIFEROUS PROPERTIES (LIM.). Wright, J. 9:Ł June and 20th
to award the scholarship to the person so selected by the trustees. The July.
testator empowers the examiners to decline to certify, the trus'ees to COMPANY - WINDING UP - CONTRIBUTORY ALSO
decline to recommend, and the Council to decline to award the scholarA CREDITOR — CALLS — ship without reason alleged. No scholarship is to be tenable for more SET-OFF.
than three months with any other scholarship or exhibition in the gift The African Gold Properties (Limited) held sbares in the Auriferous of the society. It is intended to award the first scholarship after the Properties (Limited). In January and June, 1896, two calls, amounting to November examination of the present year. In connection with the £1,250, were made on these shares. In January, 1896, the Auriferous subject of legal education, reference may be made to the following Bills Co. became indebted to the African Gold Co. in a sum of £2,775. In now before Parliament-viz , the London University Commission Bill and December, 1896, a compulsory winding-up order was made against the the Solicitors' Final Examination Bill. The object of the London Auriferous Co. Jn January, 1898, the African Gold Co. went into University Commission Bill is to provide for the appointment of comYoluntary liquidation, and a supervision order was afterwards made missioners to frame statutes and regulations for the University of London, by the court. On the 4th of May, Wright, J., held that the liquidator in general accordance with a scheme set out in a schedule to the Bill. of the African Gold Co. could not set off this debt due from the Auriferous The scheme provides, amongst other things, that the society sball have Co against the calls due to that company (42 SOLICITORS' JOURNAL, 491). two representatives on the senate of the university, and it is understood The Auriferous Co. was about to pay a dividend to its creditors, and the that one of the faculties to be established under the scheme will be a liquidator now asked for a declaration that he was entitled to hold the faculty of law. At the present stage of the Bill it is premature to express dividend due to the African Gold Co. against the liability of the latter any opinion on the subject to which it relates, but it may be as well to company for calls in arrear on its shares in the Auriferous Čo.
state that the Council adhere to the views expressed in the evidence of WRIGHT, J., held that prima facie the African Gold Co. was entitled Mr. B. G. Lake in 1888, and of Mr. Pennington in 1892, to the effect to take its dividend. Its claim as a creditor bad been duly ascertained that mere theoretical and academical teaching in law should not qualify in the appropriate proceedings, and it was primâ facie immaterial that a person for admission as a solicitor; that a university degree alone the creditor happened to be also a debtor of the Auriferous Co. There without service under articles could not be accepted as a qualification to was no contract as to ket-off, nor did the articles of association of either practise ; and that the society ought not to part with the control of the company contain any provision as to it, nor did the general statutes as examination of persons prior to their admission as solicitors. The to set-off apply, nor did the doctrine of set-off in bankruptcy, which Solicitors' Final Examination Bill has been introduced in the House of under section 10 of the Judicature Act, 1875, was extended to the Commons by Mr. A. F. Warr, a member of the society. Its object is to liquidation of companies, apply. That statute had been held to apply enable the Council of the society to make regulations for the exemption only to cross-rights existing at the commencement of the winding-up, in whole or in part from the final examination of students who obtain but here the call was made in the liquidation. If the creditor contribu- or have by examination qualified themselves to obtain law degrees at tory were allowed to take the dividend without paying the calls he would certain universities. The Council are unable to approve the scheme of be receiving payment of a part of the debt which the company owed to the Bill, tending as it does to withdraw from the society's control him without making his contribution to the fund out of which the debt examinations which, as before stated, they consider should remain under was to be paid. There must be an order as asked for by the liquidator. it. The number of students receiving instruction from the society's -Counsel, Howard Wright; George B. Northcote. SOLICITORS, Freshfields tutors on the 30th of March, 1898, was 255, as compared with 236 on the & Williams ; W. H. Hudson.
same date in 1897. An order was, on the 25th of April, 1898, made under (Reported by C. W. MEAD, Barrister-at-Law.]
the Solicitors' Act, 1377, exempting from the preliminary examination any person who has passed the matriculation examination of the University of Wales.
Solicitors' Remuneration Act, 1881.-The last edition of the digest of Judge's Chambers.
decisions and opinions under the Solicitors’ Remuneration Act being out
of print, it was decided by the Council to issue a new edition, consoliIN THE MATTER OF A SOLICITOR and IN THE MATTER OF THE dating the earlier edition and the supplements thereto, and bringing SOLICITORS ACT, 1888. Channell, J. 14th July.
down the information to the end of Hilary Term, 1898. The new volume This was an application on behalf of a solicitor against whom proceed is in the press, and it is expected that it will be in the hands of members ings had been instituted before the statutory committee of the Incor- very shortly. porated Law Society under the above statute. The charges of professional Companies Act (1867) Amendment Bill.-A bill prepared on the instrucmisconduct put forward by the complainant had been inquired into by tions of the society has been introduced in the House of Commons by Sir the committee and they had filed their report, in which they found that John Lubbock, and if passed as amended in consultation with the Presithe charges were wholly disproved. A summons in chambers in the dent of the Board of Trade, will enable the court to grant relief from Queen's Bench Division was then taken out by the solicitor calling on the penalties for non-compliance with section 25 of the Companies Act, complainant to show cause why he should not pay the costs of the inquiry. 1867, relating to contracts for the issue of fully-paid shares, recent The complainant did not appear. The cases of Re Lilley (1892, 1 Q. B. decisions of the courts having given rise to doubts as to the sufficiency of 759), and Re Howell Thomas (1893, 1 Q. B. 670), were cited.
contracts in a form that has been generally adoptod. The leading CHANNELL, J., made an order in terms of the summons.
bankers and insurance companies, as well as many merchants, brokers, and solicitors, have signed petitions in favour of the Bill. The Bill was read a second time on the 15th of June.
Colonial Solicitors' Bill.-At the request of the Secretary of State for the
Colonies a Bill, approved by him, was introduced at the instance of the LAW SOCIETIES.
society, for the purpose of consolidating and amending the law relating THE INCORPORATED LAW SOCIETY.
to the admission
of colonial solicitors in England, and of English solicitors
in the colonies. No progress having been made with the Bill up to the The following are extracts from the annual report of the Council : 7th of June, it was dropped.
Victoria Pension Fund.-The total subscriptions to this fund, with the Conveyancing Bill.—The Conveyancing Bill of last year, which was read interest received while the money was on deposit, amounted to
a second time in the House of Lords, was resettled by Mr. Wolstenholme £8,585 198. 7d., and this sum was delivered to the trustees of the Solicitors' and Mr. Cherry, on the instructions of the Council, with the intention of Benevolent Association on the 30th of December, 1897, they having reintroducing it in the present session. The Bill of the present executed a trust deed providing, amongst other things, that the fund shall year also provided for various amendments of the law rendered be called “The Victoria Pension Fund," and that the income shall be advisable by reason of decisions of the court on the subject of comapplied in providing pensions for necessitous solicitors of the Supreme pound settlements, the acknowledgment of deeds by married women Court of Judicature in England and Wales, and for their wives, widows, trustees, and other matters. The Bill as resettled was submitted for the and members of their families. There were upwards of 850 subscribers to consideration of the provincial law societies, the Institute of Conveyancers, the fund, and, having regard to the numerous charitable appeals made the General Council of the Bar, and the officials of the Land Registry. It during the year, there is every reason for being gratified with the result. did not, however, receive any considerable measure of approval, and the
Number of Members.--The society now consists of 7,882 members, of Council have decided not to proceed with it during the present session. whom 3,570 practise in town, and 4,312 in the country. 445 new members County Courts (Right of Audience) Bill.-In the autumn of last year the joined the society during the past year. The number of members is the Council held a conference with the General Council of the Bar, in the highest that has hitherto been reached.
endeavour to obviate the opposition of the bar to this Bill. The conLegal Education. The late Mr. Joseph Travers Smith, of Throgmorton ference, unfortunately, led to no agreement. A Bill having for its Avenue, in the city of London, who died on the 28th of May, 1897, by a object both to enable managing clerks who are duly qualified solicitors to codicil to his will bequeathed £6,500 stock in trust to provide three appear for their principals in county courts and to enable one solicitor to scholarships of £50 each, one to be granted in each year, and to be held act as advocate for another in a county court has been prepared by the for three years, and to be in the gift of the Incorporated Law Society by Council and introduced by Mr. A. F. Warr. its Council. The scholarships are to be awarded according to the Solicitors' Magistracy Bill.--A Bill to enable solicitors of the High Court following scheme of the testator-viz., the examiners are to certify to the to become county justices, notwithstanding that they carry on business in testator's trustees the three candidates who, being under the age of the county, has again been prepared by the society, and introduced by Mr. twenty-six years, have passed the best examination at the last Final | A. F. Warr. The Bill contains a clause prohibiting a solicitor appointed Examination of the year, the names of such candidates to be in a county justice from practising before any bench of magistrates in the alphabetical order; the trustees to select from such three county.
the hat be the best qualified by personal character, general intelligence a clause originally inserted in this Bill purporting to authorize certain and cultivation, and the nature and class of his attainments to do credit Officers of the Ilford District Council, not being qualified practitioners, to their selection and to the scholarship. The Council of the society are to institute and carry on proceedings before a court of summary juris