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consideration had been expressed by the declaration of trust to be appor- menting the duty on a conveyance of the place where the business was tioned to the leasehold premises so as to make that instrument chargeable carried on. His lordship then referred to Commissioners of Inland Revenue according to its terms with ad valorem duty as a conveyance on sale, the v. Angus (38 W. R. 3, 23 Q. B. D. 579); Potter v. Commissioners of Inland whole consideration, except the sum of £1,462 16s. 3d., apportioned by Revenue (2 W. R. 561, 10 Exch. 147); Cooper v. Metropolitan Board of Works clause 2 of the agreement as the consideration for the furniture, stock-in- (32 W. R. 709, 25 Ch. D. 472).. In the present case, in his opinion, it was trade, and cash, was to be regarded as applicable to the other property not the intention of the parties to sell the goodwill as something separate gold under the agreement, and that the instrument was chargeable under from the hotel. The purchasers could not deal with or enjoy the goodwill section 59, sub-section 1, of the Stamp Act, 1891, with ad valorem convey- separately from the hotel. The vendor had no power to sever the ance duty on £5,585 85. 4d., less the sum of £1,462 16s. 3d., making the net business from the hotel. There were no separate prices in the contract sum of £4,122 12s. 1d. They accordingly assessed the ad valorem stamp duty for the hotel and the good will. He could find no fact in the present of £20 15s. upon the agreement, being the ad valorem duty of 5s. for every case from which one could infer an intention to deal with the goodwill £50 of the sum of £4,122 12s. 1d. payable under the head “ Conveyance separately from the hotel. Appeal allowed.-- Counsel, 4. T. Lawrence, or Transfer on Sale” in the First Schedule of the Stamp Act, 1891 ; 2.0., Spearman, and 1. R. Smith; Sir R. E. Webster, A.G., and Danck, and they also assessed the fixed duty of 103. in respect of the agree- werts. SOLICITORS, A. E. Griffiths ; Solicitor of Inland Revenue. ment for sale of the premises, furniture, stock-in-trade, and cash.
[Reported by E. G. STILLWELL, Barrister-at-Law.] The instrument was stamped accordingly. The questions for the opinion of the Divisional Court were-(1) whether the instrument was chargeable with the ad valorem duty of $20 158.; (2) if not, with what amount of ad valorem duty the instrument was chargeable. The court held that the agreement was not an agreement for the sale
High Court-Chancery Division. of an equitable interest in property within the meaning of section 59, JORDESON v. SUTTON, SOUTHCOATES, AND DRYPOOL GAS CO. sub-section 1; that, as the goodwill was incapable of being severed from
North, J. 4th August. the enjoyment of the leasehold premises, the instrument was not an agreement for the sale of an estate or interest in any property except
Gas COMPANY-STATUTORY POWER-OBSTRUCTION TO ANCIENT LIGHTS lands," and was therefore not liable to ad valorem duty upon that portion
RIGHT TO SUPPORT. of the consideration attributed to “lease and goodwill”, and that it was The plaintiff is the owner of some cottages at Hull abutting on the liable to ad valorem duty upon the amount of the book debts only. From works and premises of the gas company. The gas company are conthis decision the Commissioners of Inland Revenue now appealed. structing a very large new gasholder close up to the back of some of the
The Court (A. L. SMITH, RIGBY, and VaughAN WILLIAMS, L JJ.) took plaintiff's cottages. The circular tank in which the defendants' gastime to consider their judgment. On the 5th of August the court holder is to float is constructed, but the gasholder itself is not completed. (VAUGHAN WILLIAMS, L.J., dissenting) allowed the appeal.
The plaintiff sued the gas company and also the contractors who built A. L. SMITH, L.J., in the course of a written judgment, said the first the tank for the injury done to his cottages by the subsidence of the soil question was, taking the instrument of the 19th of March, 1895, by itself, which was admitted to be due to the excavation which was necessary for did the option given by clause 6 to the purchasers to take a declaration of the construction of the tank. He charged negligence both as to the trust, if so minded, instead of a conveyance of a legal interest, constitute choice of a plan for carrying out the work and as to the carrying out of a contract or agreement for the sale of an equitable estate or interest in the plan adopted. He alleged that the subsidence was caused by the any property whatsoever ? Apart from that option, the document was a withdrawal of silt suspended in water from a stratam of what was known contract to convey a legal and not an equitable interest. To constitute a in the district as "running silt," while the defendants alleged that the contract or agreement within the meaning of section 59 there must be subsidence was substantially caused by the withdrawal of water alone, so correlative obligations on each side-on the one side to sell, and on the other that on this part of the case the question of fact was whether there had to purchase; there was here no obligation on the part of the purchasers to been negligence and what was the material pumped by the contractors take a declaration of trust and therefore the instrument of the 19th of from the bottom of the trench they dug. The plaintiff also claimed an March, 1895, was not a contract or agreement for the sale of any injunction against the gas company to restrain the erection of a gasequitable interest whatever within the section. The fact that at the time holder of such height as to obstruct access of light to the cottage windows. the instrument was taken to the commissioners the purchasers had taken On this part of the case the question of fact arose as to what effect the a declaration of trust did not convert the instrument into a contract or proposed gasholder would have on the access of light to the cottages. agreement for the sale of an equitable interest, for the question was what The defendants insisted that as a matter of law they had a statutory the instrument was when it was signed. The second question was power coupled with a duty to erect the gasholder, which, apart from whether the goodwill which was agreed to be sold and purchased by the any question, gave them the right to do what they had done and proposed instrument was a sale of property other than land. It was clear that to do, notwithstanding they might thereby injure their neighbours' goodwill was property within the meaning of the Stamp Act (see Potter v. property. They also contended that they had a natural right to abstract Commissioners of Inland Revenue (2 W. R. 561, 10 Exch. 147)), and it was water or silt in suspension from a hole in their own ground to the detrialso clear that goodwill was not land. Goodwill therefore came within ment of their neighbours. North, J., on the 15th of February found as the express terms of section 59 as being property other than land. It was a fact that the gasholder when erected and inflated to the proposed suggested that the goodwill here was only the enhancement of the value height of 100 feet must interfere with the access of light to the cottages, of the premises and could not exist apart from those premises; but that but could not say that the plan of doing the work was improper, and was not so. Goodwill was .as capable of being sold as a separate entity held that it had been ekilfully carried into execution. He alão held that for what it was worth as was the tenant's interest in the lease. Here the subsidence was due to the abstraction not merely of underground water parties had expressly sold the goodwill, licences, and contracts relating but also of silt held in suspension in the water abstracted, and reserved thereto, eeparate and apart from the lease and other entities contracted to judgment on the points of law. be sold. This goodwill was therefore clearly not land, and the con August 4.-NORTH, J., held that the argument that the company had tention of the Crown was therefore right and the appeal must be a statutory duty to exercise its statutory powers was unsound. The comallowed.
pany was under no obligation to use that particular site. He granted an RIGBY, L.J., also read a judgment agreeing with the above.
injunction against the company to restrain it from raising the gasometer VAUGHAN WILLIAMS, L J., read a judgment dissenting from the decision more than sixty-eight feet, and gave £340 damages against both the arrived at by the other Lords Justices. He was of opinion that the instru company and the contractors.-COUNSEL, Upjohn, Q C., and D. Pollock ; ment was not a contract or agreement for the sale of any equitable estate Haldane, Q.C., Macnaghten, Q.C., Boome, Rawlins, Q.C., Bardswell, Heckor interest in any property whatsoever. It was a contract for the sale of scher. SOLICITORS, Collyer-Bristol & Co., Jaques & Co. a legal interest, and the option given to the purchasers to call for a
[Reported by G. B. HAMILTOX, Barrister-at-Law.] declaration of trust did not convert the instrument into a contract for the sale of an equitable estate or interest. As regards the next question,
ROBERTS ». HEATON, Stirling, J. 9th August. whether the instrument was a contract or agreement for the sale of any Lease-PUBLIC-HOUBE-Covenant BY LESSEB To Purchase Beer ONLY estate or interest in any property excepting lands, tenements, or here. ditaments, this depended upon whether the goodwill, which was by a
FROM LESSOR-BeneFIT-WHETHER ASSIGNABLE. Eeparate clause included in that which was agreed to be sold and pur This case raised the question whether a covenant on the part of the chased by this instrument, was sold and purchased as land—that was, as lessee contained in the lease of a public-house to buy beer from the lessor something enhancing the value of the land and inseparable from it, or bound the lessee to buy beer from persons to whom the benefit of such whether it was sold and purchased as property other than land. There covenant had been expressly assigned by the lessor. By an indenture of could be no doubt that goodwill might be so inseparably connected with underlease dated the 18th of July, 1895, and made between G. E. Curtis land -e g., with a particular house, as to pass under a conveyance of land (thereinafter called the lessor) of the one part, and R. St. J. Dwyer (there(see Lindley on Partnership, 6th ed., p. 441). In the present case the inafter called the lessee) of the other part, the messuage or dwelling-house goodwill of the hotel was included in the lease, and by the terms of the known as the Royal Hotel, Pawlish, in the county of Devon, was demised lease the business could not be removed from the house demised without unto the lessee, his executors, administrators, and assigns, from the 20th the landlord's consent. The goodwill was made inseparable by the terms of June, 1895, for the term of 19 years thence next ensuing at the rent of the lease. The good will did not belong to the vendor so tbat he could during the first six years of the said term of £187 103., and during the sell it apart from the leage. It was part of the reversion of the landlord. remaining years of the said term at the rent of £197 105., and the lessee Moreover the goodwill of a leasehold public-house had generally been thereby covenanted with the lessor in manner following—that is to say, treated as part of the demised premises : Ex parte Punnelt, Re Kitchen (29 for the payment of the rent, rates, &c., and to permit the lessor to enter W. R. 129, 16 Ch. D. 226). That case shewed that goodwill might, for and view the premises, and also "that the said lessee, his executors, adthe purpose of conveyance, be separated from realty, and if so separated ministrators, and assigns, will, during the said term, so long as the necesit would be liable to duty as property ; yet if it was not so separated it sary licences can be obtained, use or cause the premises to be used only as would be treated, on a sale of the premises where the business was carried an inn, tavern, or public-house, and that they will not carry on or suffer on, as something enhancing the value of the realty, and, pro tanto, aug- to be carried on upon any part of the said premises any trade or business
other than that of an innkeeper and wine and spirit merchant, and will arbitrators failed to make their award within three months "after being during the said term purchase from the said George Edward Curtis all beer called on to act by notice in writing.” That is made out in this way. whether in bottles or draught which shall be brought on the said premises on the 11th of January, 1898, notice was served on the arbitrators, requirfor the purpose of sale and will not during the said term purchase for the ing them to appoint an umpire. The award was not made till the 30th of purpose of sale any beer from any other person or persons whatsoever.” April, 1898, and the question is whether the notice of the 11th of January Except in the covenant above set out the lessor was throughout the said is a notice calling on the arbitrators to act within the meaning of the underlease referred to as “the lessor," and his assigns were expressly Act. There is no decision as to tbe meaning of the words "being called referred to. The lease was subsequently assigned by Dwyer to a Mr. on to act by notice in writing,” but in Baker v. Stephens (15 W. R. 902, 2 Sballcross, and by Stallcross to Mrs. Heaton, the defendant. At the time Q. B. 523) it was held that the words “entering on the reference" meant the lease was granted the said G. E. Curtis was the owner of a brewery pot merely making an appointment to hear the parties, but actually known as the Teign Brewery, and of the business of a brewer carried on beginning to hear them; and that the time for making the award should at such brewery. By an indenture, dated the 14th of July, 1896, G. E. be reckoned not from when the arbitrator accepted the office, but from Curtis conveyed the said brewery and assigned the goodwill of the said when he entered into the matter of the reference either with both parties business to J. Roberts, and by another indenture of even date Curtis before him or under a peremptory appointinent enabling him to proceed assigned to the said J. Roberts, his executors, administrators, and assigns, ex parte. That case does not goveru the present, but it throws some light the said Royal Hotel subject to and with the benefit of the said under on it. It seems to me that "called on to act" means not called on to do lease, and the benefit of the said covenant was thereby expressly assigned. some specific thiog connected with the arbitration, but called on to enter The plaintiffs subsequently became entitled to all the premises so assigned on the substantial business of the reference. I think therefore that this to the said J. Roberts. The plaintiffs having ascertained that the objection is well founded, and that the jurisdiction of the umpire had not defendant had purchased for the purpose of sale in the said Royal Hotel, arisen.--Counsel, Buckley, Q.C., and Gore-Browne ; Mattinson, Q.C., and and had in fact sold thereon beer from persons other than the plaintiffs, Beddall. SOLICTORS, Seal; Booth & Smee. commenced this action against the defendant, and by the writ claimed an
[Reported by J. I. STIRLING, Barrister-at-Law.] injunction to restrain the defendant from so purchasing or selling any such beer, and now moved for an injunction till the trial. The said G. E. Re PIERCY, WHITWAAM v. PIERCY. North, J. 5th August. Curtis was still living.
ADMINISTRATION—LAND SITUATE IN FOREIGN COUNTRY-RESTRAINING Ap. STIRLING, J., refused to grant the injunction and said that the question
PLICATION TO FOREIGN COURT. he had to decide was whether on the true construction of the above covenant the benefit of the lessee's obligation to purchase beer off Curtis
This was a motion to restrain R. C. Piercy, the heir-at-lew of the passed to Curtis's assignees. In approaching the consideration of such testator, from preventing an order of North, J., dated the 6th of Novema covenant there appeared to be no reason why it should be presumed to ber, 1896, from being registered in Italy, and from taking proceedings have a wider rather than a narrower construction. The covenant was
inconsistent with an order dated the 9th of April, 1895, giving the plainfree from ambiguity, and was confined to purchases from Curtis personally, tiffs and defendants leave to apply to register the said order in Italy. A and that view was confirmed by the context.- COUNSEL, Jenkins, Q.C., and
summons by the heir-at-law that he might be at liberty to take such Micklem ; Upjohn, Q.C., and Ward Coldridge. Solicitors, Mann f Crimp, proceedings in Italy to decide who was entitled to the immovable property for 7. f J. Hutchings, Teignmouth ; Preston, Slov, & Preston, for Friend, had decided (1895, 1 Ch. 83, p. 88) that " where there is an English owner
of the testator as he might be advised had been dismissed. North, J., Beal, f Tarbet, Exeter. (Reported by Wm. Scott THOmpson, Barrister-at-Law.]
of money arising from the sale of land which belongs to other persons and is subject in their hands to Italian law, there is nothing in Italian law to
On the 5th of June, BARING GOULD «. SHARKINGTON COMBINED PICK, &c. (LIM.) AND make that money itself subject to Italian law.”'
THE ARBITRATION ACT, 1889. Stirling, J. 9th and 14th June, 3rd 1895, notice was given to the heir-at-law of the intention of the plaintiff's August.
and defendants to apply to register the judgment of North, J., in
Italy. The heir-at-law attended the proceedings and opposed the COMPANIES Act, 1862 (25 & 26_Vict. c. 89) ss. 161, 162 -WINDING UP- application, and the Court of Appeal in Cagliari, in the civil action of
Purchase of Undertaking-DISSENTIENT SHAREHOLDER-ARBITRATION- Piercy v. Piercy, stated that there was a difference between the English AWARD OF UMPIRE - VALIDITY OF AWARD-AUBITRATION Act, 1889 (52 & law and the Italian code as regards real property in Italy, and rejected the 53 Vict. c. 49), First SCHEDULE (C) (D).
claim for the execution of the judgment of the High Court of Justice in This was a summons in the action to enforce an award made under the London of the 6th of November, 1896, in the Italian territory. Bushby v. following circumstances. Article 128 of the articles of association of the Mundy (5 Mad. 297), Booth v. Leycester (1 Keen 579), and Harrison v. Gurney defendant company provided that if a sale or arrangement should be made (J. & W. 563) were cited in favour of the motion. For the heir-at-law it under the Companies Act, 1862 (s. 161), the purchase, money to be paid English court, but merely defended proceedings brought against him, and
was said that he had done nothing inconsistent with the order of the for the interest of a dissentient member should be such sum of money as the liquidator could obtain by selling the shares, stock, or other property that the cases cited were distinguishable, as in all of them the person to which the diecentient member would have been entitled on the com restrained was plaintiff in the foreigy proceedings. It would be, it was pletion of the sale or arrangement had he not expressed his dissent. In said, without precedent to restrain a defendant in a foreign court, against the autumn of 1897 a scheme was brought forward for the reconstruction whom an order for costs was asked, from arguing in his own defence. of the company, and resolutions were passed for a voluntary winding up.
North, J., however, made an order restraining the respondent from On the 9th of Éeptember the plaintiff dissented from these resolutions preventing the order of the 6th of November, 1894, from being registered On the 15th of October the liquidator entered into an agreement for the in Italy, and from taking any proceedings or doing any act inconsistent sale of the assets of the old company to a new company. The price was
with the said order, and in particular from opposing any appeal which to be 24,900 fully-paid shares of the new company which were to be may be brought by the trustees against the judgment of the Italian court. applied for by the sbareholders in the old company. On the 13th of
And he ordered the respondent to do all things that may be vecessary on November the plaintiff brought this action to restrain the liquidator bis part to effectuate the sale of the Italian land.--- Counsel, Cozens-Hardy, parting with the as sets or undertaking of the old company without Q.C., Thompson, St. John Clerke. SOLICITORS, Field, Roscoe, ó Co. ; Godden, providing for his interest under section 161. The matter was referred to Son, & Holmes. arbitration but the company accepted the arbitration under protest. An
[Reported by G. B. HAMILTOX, Barrister-at-Law.] umpire was appointed in the arbitration and he, on the 30th of April, 1898, awarded the plaintiff £100 for his interest in the company. The plaintiff then took out this summons which was adjourned into court to enable the defendants to raise the question of the validity of the award.
High Court-Queen's Bench Division. STIRLING, J.-Two objections have been taken to the award, on
THE GRAND JUNCTION WATERWORKS CO. (Appellants) AND THE behalf of the company and the liquidator : first, that the event on which
HAMPTON URBAN DISTRICT COUNCIL (Respondents). Div. Court. arbitration is to take place under section 162 of the Companies Act has
9th and 10th August. not happened ; and, secondly, that the event which gives the umpire jurisdiction has not happened. As to the first objection, it is contended Public Health (BriLDINGS IN STREETS) Act, 1888—WATERWORKS Comthat article 128 constitutes an agreement within the meaning of section PANY-BUILDING ERECTED BEYOND LINE OF BUILDINGS IN STREET162, and that the right to arbitration is thereby excluded. Against this
COMPANY BY SPECIAL ACT TO BE SUBJECT TO PROVISIONS OF ANY GENERAL it is first said that the agreement must be between the disputing parties ACT FOR “IMPROVING The SANITARY CONDITIONS OF Towns"- LIABILITY and that these are here the dissenting shareholder and the liquidator. OF COMPANY UNDER Act of 1888--WATERWORKS CLAUSES Act, 1847, Having regard to the language of section 162 and the decision in De Rosaz ss. 12, 93 - GRAND JUNCTION WATERWORKS Act, 1852, s. 25--PUBLIC V. Anglo-Italian Bank (17 W. R. 728, 4 Q. B. 462), I am of opinion that HEALTH (BUILDINGS IN STREETS) Act, 1888 (51 & 52 Vict. c. 52), s. 3. the disputing parties must be the shareholder and the company and not the shareholder and the liquidator. But then it is ssil that the articles 51 Geo. 3, c. clxix., authorizing them to supply water in certain parishes
The appellants are a waterworks company constituted by an Act of constitute an agreement between the shareholders inter se and not between in London and elsewhere. By the Grand Junction Waterworks Act, a shareholder and the company. On the authority of Eley v., Positive 1852, the company received additional powers to obtain a supply of Assurance Co. (24 W. R. 252 and 338, 1 Ex. Div. 20 and 88) and Browne water from the Thames at Hampton and to construct a reservoir and v. La Trinidad (36 W. R. 289, 37 Ch. D. 1) I think this objection is well other works on a triangular piece of land where the roads leading founded. I also think that the objection that article 128 only applies where respectively from Sunbury and Staines to Hampton join. The pro. the dissentient shareholder would have been entitled to "shares, stock, or visions of the Waterworks Clauses Act, 1847, were incorporated into the other property” on the completion of the arrangement, is well founded. Grand Junction Waterworks Act, 1852, and by section 93 of the Act of Here, under the agreement of the 15th of October, 1897, he would only have 1847 it is enacted that "nothing herein or in the special Act contained been entitled to a sum of money. On these grounds I think the first shall be deemed to exempt the undertakers from any general Act relating objection taken fails. The second turns on the construction of the First to waterworks or any Act for improving the sanitary condition of towns Schedule to the Arbitration Act, 1889, clause (c). It is said that the land populous districts which may be passed in the same session of Parlia
ment in which the special Act is passed or any future session of Parliament " promises to pay money on events of horse-races and the like contingencies, In May the appellants were summoned upon the information of the respon- and it then proceeds to deal with the evil so pointed out. The first clause dents for having committed an offence under the Public Health (Buildings of section 1 deals with a house being opened or used for the purpose of in Streets) Act, 1888, by unlawfully, without the written consent of the betting with persons resorting thereto. The second clause covers cases respondents, erecting part of a building-an engine-house-on their in which persons do not necessarily resort to the house. [His lordsbip ground at Hampton which stood beyond the front main wall of the build read the clause above set out.] Was there any evidence that the defening on either side thereof situated in the Upper Sunbury-road, and did dant used this house for the purpose of any money being received by him continue to suffer the came to remain standing after written notice had or on his behalf as the consideration for a promise to pay money on an been served on them by the respondents. The magistrates who heard the event of or relating to a horse-race? The section points to a contractual summons held that the appellants had committed an offence against the relation between the keeper of the house and the person who Public Health Act, 1888, in so erecting the engine-house and continuing pays the money, a promise by the former that he will pay a it after receiving notice of the offence from the respondents, and ordered sum to the latter in certain contingencies. The facts of this the appellants to pay a penalty of one shilling a day and the respondents' case show no such relation; all that the defendant undertook to do was costs. The appellants then obtained this case. Counsel on behalf of the to manage the sweepstake and after retaining his reasonable expenses to appellants contended that they were authorized by their special Acts to distribute the prizes out of the contributions. The persons who took the construct upon such portions of the lands acquired by them under and for tickets created a common fund which the defendant merely received as a the purposes of their undertaking, as they in the exercise of their discre- stakeholder and undertook to distribute. The clause aims at transactions tion thought proper, all works, including buildings for engines, as were in which a promise to pay in a certain event is made by the person who necessary, and that the provisions of the Public Health Act, 1888, did not receives the money, and here the defendant made no such promise. limit their statutory power to erect such buildings as were required to Again, to brivg a case within the clause the " event" on which the carry out the undertaking. Moreover, they said that the Act of 1888 was payment is to be made must be an “event of or relating to a horse-race"; pot an Act for improving the sanitary condition of the district, and there that was not the case here, the prizes depended on the event of the drawfore they were not bound to conform to it. For the district council it ing, which would have been equally effective if it had taken place after was submitted that the Act of 1888 was an Act for improving the sanitary the race had been run instead of before. Turning to the rest of the Act condition of towns within section 93 of the Act of 1847, and that the it is clear that every section of it is convereant with the keeping of houses special powers granted the waterworks company by section 12 of the Act and places for the purpose of betting. This is made very clear by section of 1847, or by section 25 of the Act of 1852, did not exempt the appellants 7, which prohibits the advertising of such places. In my judgment the from the provisions of the Act of 1888.
case does not fall within the letter of the Act or the category of evils with The Court (MATHEW and KENNEDY, JJ.) held that the conviction was which it deals, and there was no evidence of an offence under it. I must right, since the provisions of the Act of 1888, in their opinion, applied to not be understood as saying that the conduct of the defendant did not the appellants by virtue of section 93 of the Waterworks Clauses Act, 1847. constitute an offence. I think the transaction was a lottery, but that is Judgment was accordingly given in favour of the district council. - not the question which we have to consider. COUNSEL, Bosanquet, Q.C., Macmorran, Q.C., and R. C. Glen; H. H. Asquith, HAWKINS, MATHEW, KENNEDY, and BIGHAM, JJ., concurred. Conviction Q C., Courthope Munroe, and W. H. Leese. SOLICITORS, Bircham & Co.; Kent quashed.—Counser, R. D. Muir ; Horace Avory. SOLICITORS, Davenport, of Son.
Jones, & Glenister ; The Treasury Solicitor. [Reported by EBSKINE Reid, Barrister-at-Law.]
(Reported by T. R. C. Dill, Barrister-at-Law.] REG. v. HOBBS. C. C. R. 6th August. CRIMINAL LAW—UBING House for BETTING-SWEEPSTAKE-BETTING ACT, CRIMINAL LAW-COMMITTAL under Fugitive OFFENDERS Act, 1881 (44 &
REG. v. SPILSBURY. Div. Court. 8th August 1853 (16 & 17 Vict. c. 119), s. 1. Case stated by Hawkins, J. The defendant was indicted at the Lewes
45 Vict. c. 69)– JURISDICTION TO ADMIT TO Bail. Summer Assizes under section 1 of the Betting Act, 1853, for having used
Application for bail and for a writ of habeas corpus on behalf of Major a public-house of which he was the occupier for the purpose of money Spilsbury, against whom the police magistrate at Bow-street had made being received by him as and for the consideration for promises and
an order under the Fugitive Offenders Act, 1881, directing him to be sent agreements to pay thereafter certain sums of money in events of and to Tangier to be tried at the Consular Court there on the charge that he, relating to a horse-race called the Derby Stakes. The question was
being a British subject, did, on or about the 13th of January, 1898, on whether the sale and receipt of the purchase-money for tickets in a sweep
the Sus coast, within the territorial waters of the Empire of Morocco, in stake by the defendant in the bar of the public-house was an offence the steamship Tourmaline, with others to the number of three or four, under the above section. The sweepstake was to consist of a thousand unlawfully and riotously assemble, and riotously make an assault upon subscriptions of 23. 60. each, which if entirely subscribed would amount to certain soldiers of the Sultan of Morocco by firing on the Sultan's ship £125. Of this 10 per cent. was to be deducted by the defendant for Hassanie, and participate in an assault on the boats belonging thereto management expenses and the balance distributed in prizes to the
and at the time manned by such soldiers. Application was also made for drawers of horses, varying from £45 to the drawer of the winning horse to
an order that the trial should take place at Gibraltar instead of at five shillings to each drawer of a horse which did not start in the race; these Tangier. The facts sufficiently appear from the judgment of Lord prizes were the sums mentioned in the indictment as the subject of Russell of Killowen, C.J. As to the power to admit to bail, section 5 of the defendant's alleged promise to pay. The tickets were bound up in the Fugitive Offenders Act was relied upon as showing that there was no books, a counterfoil being attached to each. The subscriptions were jurisdiction to do so. That section provides that "a fugitive when apprereceived by the defendant and his servants in the bar of the public-house hended shall be brought before a magistrate who
shall hear the and a ticket was delivered to each subscriber and his name and address
case in the same manner and have the same jurisdiction and powers, as near entered in the counterfoil. Before the time for the drawing of horses
as may be (including the power to remand and admit to bail), as if the arrived the police intervened and stopped the further conduct of the fugitive were charged with an offence committed within his jurisdiction. sweepstake. In previous years the drawings had taken place in premises If the endorsed warrant for the apprehension of the fugitive is duly adjoining but forming no part of the public-house. The defendant was
authenticated and such evidence is produced as
accorðing to the not to receive any part of the money except the 10 per cent. for expenses, law ordinarily administered by the magistrate raises a strong or probable which the learned judge considered was a reasonable charge, and he gave presumption that the fugitive committed the offence mentioned in the no guarantee or promise to pay any sum to anybody except to distribute warrant, and that the offence is one to which this part of the Act applies, the prizes in accordance with the drawings. Hawkins, J., entertained a
the magistrate shall commit the fugitive to prison to await his return and doubt as to whether there was any evidence to go to the jury of an offence shall forth with send a certificate of the committal, &c." under the section, but he directed them to convict with a view to stating
Lord RUSSELL OF Killowen, C.J.-The Fugitive Offenders Act, 1881, this case for the opinion of the court for consideration of Crown Cases has been made applicable to the dominions of the Sultan of Morocco by an Reserved. The latter part of section 1 of the Betting Act, 1853, makes it Order in Council under section 36 of the Act. It is admitted that the an offence for the owner or occupier of a house to open or use it for the offence charged against the defendant is one in respect of which an order purpose of any money or valuable thing being received by or on behalf of under the Act for the return of the fugitive may be made, but it is said such owner or occupier " as or for the cousideration for any assurance, that the evidence does not raire a strong or probable presumption " undertaking, promise, or agreement, express or implied, to pay or give that the defendant committed the offence. The broad facts were that the thereafter any money or valuable thing on any event or contingency of defendant was in charge of The Tourmaline, a vessel sent to the coast of or relating to apy horse-race": Carlill v. The Carbolic Smoke Ball® Co. Morocco by a trading syndicate. At Antwerp the defendant had pur(1892, 2 Q. B. 484), Sagar v. Stoddart (18 Cox C. C. 165), Caminada v.
chased certain arms. He claimed to have treaties with certain indeHulton (39 W. R. 540), and Allport v. Nutt (1 C. B. 974) were cited. pendent tribes. Those tribes, however, were said to be within the juris
Lord RUSSELL OF KILLowEN, C.J.-The learned judge at the trial diction of the Sultan. The Tourmaline appeared on the coast--not near expressed great doubt as to whether there was evidence of this offence to any commercial port. Arms and tents of European manufacture were go to the jury. I think that that doubt was well founded. In my opinion landed. The tribes met the defendant and three of bis companions who there was no such evidence. The general importance of the case makes had landed. The defendant returned to the vessel, leaving the others on it desirable that I should state the grounds for that opinion. The shore. Presently there appeared a man-of-war belonging to the Sultan, allegation that the defendant is a publican is wholly irrelevant; the case which prevented access between The Tourmaline and the shore. Fighting would have been the same if this transaction bad taken place at a club or took place on the shore, and shots were fired from The Tourmaline.
In a elsewhere. It seems to me that what took place was a lottery, or at all letter from the defendant, which was an important piece of evidence, he events was not a betting transaction. When the Betting Act, 1853, was stated that he ordered his ship to be cleared for action. On these facts passed there were already statutes dealing with lotteries, and betting was there was sufficient to justify the magistrate in making the order. They then treated as a separate subject for legielation. The Act is "an Act raised the “strong or probable presumption " mentioned in the section. for the suppression of betting-houses”; it recites that a kind of gaming The question of diffculty that remains is this. Failing the success of the had sprung up by the opening of betting-houses and offices, and the application to upset the order altogether, can the court grant the defenreceiving of money in advance by the owners or occupiers ou their dant bail ? Is the question to be considered from the point of view that
the defendant must show under what section of the statute the power is to the full extent of three months. The order was accordingly drawn up given ? In other words, is the onus on the defendant to prove the and the 3rd of November, 1896, was inserted as the date when the existence of the power? I think not. Apart from any statute the court suspension began. On the 19th of September, 1896, the solicitor wrote to has a power to admit to bail. The matter must therefore be approached the officer of the court to say that, having completed his business, he in this way-does the Act expressly or impliedly do away with that power? desired that the order should take effect from the 21st of September. Nothing in it does so in express words. Does it do so by implication ? The order was not however altered. The solicitor now applied to the If it does the result would be that, though the magistrate might give bail Lord Chief Justice to rectify the order by making the suspension extend during the whole of the possibly lengthened period of the inquiry and from the 21st of September, 1896, to the 21st of September, 1898, instead the court of the country to whom the fugitive was sent might give bail of from the 3rd of November, 1896, to the 3rd of November, 1898. On also, yet the High Court could not grant bail when once the order for behalf of the Incorporated Law Society, who opposed the motion, it was return was made. I have come to the conclusion that unquestionably contended that the solicitor, having once exercised the option given to the court has the power to grant bail. Some difficulties have been him, could not afterwards claim to exercise the option in a different suggested as to the consequences if bail were granted. Suppose a man on way. bail refused to deliver himself up, it is said there is no power to arrest Lord RUSSELL OF KILLOWEN, C.J., dismissed the motion.-COUNSEL, C. hira. Even if that were the case, the answer to the objection is that E. Jones ; Frank Phillips. proceedings might be recommenced against him, and a fresh warrant
(Reported by C. G. WILBRAHAM, Barrister-at-Law.) issued on which he might be arrested. This would cause delay, but no insuperable difficulty. It is impossible to suppose that if the Legislature SOLICITORS ORDERED TO BE STRUCK OFF THE ROLLS. had intended to interfere with the ancient and well-known power of the court to grant bail that it would have left it to implication only. The
8 August-WILLIAM BUFFTON NORRIS. power, however, is one to be exercised with extreme care and caution and
8 August-James Shaw (9, Fold-street, Bolton). after consideration of all the facts. The charge here is one of misdemeanour, but there is no right to demand bail. The order is a kind of intermediate order, and not like the committal by a magistrate of a prisoner to take his trial at assizes. The inquiry before the magistrates only began when the fugitive was returned.
LAW SOCIETIES. Upon the question whether in the exercise of the court's discretion bail should be granted or not, I have
SOLICITORS' BENEVOLENT ASSOCIATION. come to the conclusion, not without considerable doubt, that in this case the court ought not to grant bail; it will largely
The usual monthly meeting of the board of directors of this association depend on the defendant himself how soon he shall return;
was held at the Law Institution, Chancery-lane, London, on Wednesday, doubtless if the defendant applies for an early removal it will be granted the 10th inst., Mr. Sidney Smith in the chair. A sum of £771 103. was to him. The only remaining point was whether ie trial shouid take distributed in grants of relief, six new members were admitted to the place at Gibraltar instead of Tangier. It is not only within the com
association, and other general business transacted. petence, but also within the duty of the court, if there are reasons which ought to operate on them judicially for the trial taking place at Gibraltar, to give effect to them. (His lordship then reviewed the evidence as to the danger to the defendant of the trial taking place at Tangier, and ordered that it should take place at Gibraltar.]
LEGAL NEWS. WRIGHT, J., concurred, and added that the decision that the court had
OBITUARY. power to grant bail in a case under the Fugitive Offenders Act would not apply to cases under the Extradition Acts in which the words of the
Mr. David GRAY Begg, barrister-at-law, died on the 22nd ult. from the treaty with the foreign power had to be considered.
effects of an accident. On the morning of Tuesday, the 19th ult., Mr. KENNEDY, J., concurred.-- Counsel, Cohen, Q.C., and Ellis Grifich; Sir Begg was in Lincoln's-inn-fields, and was about to turn the corner of R. E. Webster, A.G., Henry Sutton, and Bodkin. Solicitors, Hollams, Son, Portugal-street, when he suddenly fell. Several bystanders ran to his Coward, g Hawksley; The Treasury Solicitor.
assistance, and he was taken to the hospital, where Dr. Kenneth de
Risley Brown found that he had fractured the neck of one of his hip [Reported by T. R. C. Dill, Barrister-at-Law.]
bones. On the following Friday death took place quite unexpectedly. Mr. Begg was a son of the Rev. Alexander Begg, of Fraserburgh, in Aberdeenshire, and was educated at the King's College and University
in Aberdeen, where he gained a bursary and other distinctions, but in Solicitors' Cases.
consequence of the death of his father he was obliged to leave the
university without taking any degree. He then entered a solicitor's office, Re FURBER, Ex parte C. S. WATKINS. Kekewich, J. 4th August.
and eventually by his own exertions found means to be called to the bar SOLICITOR-MORTGAGE OF PERSONALTY- Costs ACCORDING TO THE SCALE— in 1859. He practised as an equity draftsman aud conveyancer with
SOLICITORS' REMUNERATION Act, 1881 (44 & 45 Vict. c. 44), GENERAL considerable success, and was esteemed for the soundness of his judgment ORDER, SCHEDULE I., Part I.
and for his careful and accurate style of draftsmanship, which he had This was a summons by a mortgagor's solicitor to review the taxing. In 1871 the then Solicitor of the Treasury, isr. John Gray, Q.C., made an
acquired as a pupil of the celebrated conveyancer, Mr. Charles Davidson. master's certificate, whereby the solicitor had been disallowed certain costs uneolicited effort to get him appointed conveyancing counsel to the relating to the negotiation of several mortgages and charged according to the scale in Schedule 1, Part I, of the General Order to the Solicitors" Treasury; but the Attorney-General, Sir Robert Collier, preferred to
Mr. Begg was twice married, and Remuneration Act, 1881. The mortgage security consisted of a rever. give that appointment to his own son.
leaves a widow and several children. sionary interest under certain wills (being in part, at any rate, an interest in personalty), and of a fund in court, and the mortgagor's Mr. E. M. WaveLL, J.P., solicitor, of Halifax, died on Wednesday week, solicitor having procured the required advances from certain of his at the age of ninety years. He was admitted in 1830, and was, it is believed, own clients, charged the mortgagor with costs for negotiation ac the oldest practising provincial solicitor. He was Town Clerk of Halifax cording to the scale in Schedule 1. The taxing-master dicallowed these from April, 1849 (tho year after incorporation), until 1864, but relin. costs, on the ground that the mortgage security did not consist exclusively guished that office, after holding it for twenty years, when the demands of of " freehold, copyhold, or leasehold” property. On behalf of the solici his practice became too great for him to retain it. He then took into tor it was contended that the “negotiation" of the loan was not confined partnership Mr. Philbrick, Mr. Foster, and his son Captain Wavell, all of to a loan the security for wbich consisted exclusively of “freehold, copy. whom he has outlived. Now the style of the firm is Messrs. Wavell, bold, or leasehold," but referred to any kind of security, and that because Kerr, & Kerr. Though so far advanced in years, Mr. Wavell up to the scale fee for deducing aid.investigating title was restricted to cases of quite recently was closely identified with the business, and the remark"freehold, copy hold, or leasehold” property, it did not follow that the able insight and faithful memory he shewed were evidences that his fce for “negotiating a loan” was similarly restricted.
faculties were unimpaired. He had built up a large practice, and in his KEKEWICH, J., held that the solicitor was entitled to charge the scale younger days had briefed, when they were barristers, nearly all those who fee for negotiating the loans, notwithstanding that the mortgages were are now her Majesty's judges. He was made a justice of the peace in 1878. not exclusively of " freehold, copy hold, or leasehold” property, and re He was one of the original guarantors of the Yorksbire Penny Bank, mitted the matter to the taxing-master accordingly. -COUNSEL, P. o. and was the first president of the Halifax Incorporated Law Society. Mr. Lawrence, Q.C., and G. Henderson; Warrington, Q.C., and Stewart Smith. Wavell’s disposition, says a local newspaper, was of the most genial type, SOLICITORS, R. Furber; Mear & Fowler.
and he had a happy knack of recalling interesting reminiscences of former [Reported by R. J. A. MORRISON, Barrister-at-Law.]
daye. When he completed bis ninety years last September, he received
a very large number of letters and telegrams of congratulation from Re A SOLICITOR. Q. B. Div. 6th August.
many different parts of the kingdom. Mr. Wavell leaves ono son and
three daughters, besides numerous grandchildren and greatgrandchildren. SOLICITOR-ORDER FOR SUSPENSION-RECTIFICATION-OPTION AS to Date OF SUSPENSION.
APPOINTMENTS, This was a motion on behalf of a solicitor to rectify an order made by the Divisional Court on the 3rd of August, 1896, suspending the certificate
Mr. A. 0. Davies, solicitor, of the firm of Messrs. Moore & Davies, of of the solicitor for two years. The court who made the order directed that 4, New-square, Lincoln's-inn, London, has been appointed a Commisit should lie in the office for three monthe, or for a shorter period should sioner to Administer Oaths. the solicitor so desire, in order to give him time to complete matters of Mr. John DARBY, solicitor, of the firm of Messrs. Colebourn, Allen, & business then in his office. The solicitor, through bis counsel, at the time Darby, of Wolverhampton, has been appointed a Commissioner to the order was made, intimated that he would avail himself of the indulgence ! Administer Oaths,
Mr. INDERWICK, Q.C., has been elected Chairman of the Inns of Court whole of the Balfour prosecution and one or two beavy cases at the old Bar Library Committee at the Royal Courts of Justice, in cuccession to Bailey; besides, he was engaged in Admiralty arbitrations which involved Mr. Napier Higgins, Q.C., resigned.
heavy work for many days. As to the change which had taken place, he said he was satisfied that it was against the public interest that contentious
business should be paid for by salary. He did not look at the question CHANGES IN PARTNERSHIPS, &c.
from a professional point of view, but only from the public point of DISSOLUTIONS.
view. Government business involved many different classes of workGeorge HORACE DAVID Chilton and ALFRED Green-ARMYTAGE, solicitors questions of contract. It frequently happened that, in order to get the
criminal, charity, foreshore cases, Admiralty and scientific work, and (Chilton & Green-Armytage), Bristol. July 14.
best assistance which the Government ought to have, they had to employ EDWARD ROBERT CARR and FREDERICK WILLIAM MARTIN, solicitors (Carr a person specially qualified in a particular line of work. It had happened & Martin), 11 and 12, Great Tower-street, London. July 30.
to himself more than once to point out that he was not the fittest person John GARRETT MORTEN, CHARLES RICHARD CUTLER, JOHN GARRETT to conduct a particular case, and other counsel had been instructed. Morten, jun., and WILLIAM JAMES Bradley, solicitors (Morten, Cutler, & The hon. member for Dumfries, when acting as a law officer on salary, Co.), 99, Newgate-street, London, so far as regards the said Charles bad requested members of the House to appear either with him or Richard Cutler. July 1.
[Gazette, Aug. 5.
independently; and the proper view was that on a moderate scale of fees the Government should obtain the services of the best men for a particular
In the House of Commons on Tuesday, Mr. Gedge moved : The death is announced of Mr. Charles James Manning, Chief Judge in this House disapproves of the Order of Council made on the 18th day of Equity of the Supreme Court of New South Wales. Mr. Mar sing, was July last, under the Land Transfer Act, 1897, and laid upon the table on called to the bar in November, 1865.
the following day, which directs that registration of title to land shall be In the House of Commons on Tuesday Mr. Gedge asked the Attorney. compulsory on sale in the county of London." He observed that General whether the Order in Council made under the Land Transfer Act, objections to the Land Transfer Bill were met by two concessions in the 1897, on the 18th of July last, and laid on the table of the House on the Act passed last year-first, that it should in the first instance be tried in 19th of July last, would become valid after forty days if no address one county only and in no other county for three years except at the disapproving of such order be carried, in the event of Parliament being request of the county; and, secondly, that within an interval of three prorogued before the forty days bad elapsed, or would they begin again months from notice being given by the Privy Council of intention to apply to run from the first day of next session, as was the case with the the Act, a county might pass a resolution of dit approval and the Act orders of council approving charitable schemes. The Attorney-General would not be enforced. The county of Yorkshire was first selected, and said : So far as the question is one of law, I am cf opinion that under promptly objected, and ultimately the administrative county of London sub-section 9 of section 20 of the Land Transfer Act, which is worded was chosen for the experiment. Thereupon he moved an amendment differently from the sections in other Acts of Parliament relating to to prevent this. The Attorney-General assured bim that the Act similar matters, the order will become valid forty days after the 19th of would not come into operation until the 1st of January, and the hon. July, unless an address be carried within that time disapproving of such and learned gentleman gave a pledge that notices would not be given until order.
January, and thereupon the amendment was negatived. It was quite Mr. Registrar Linklater, on a recent day, on taking his seat in the On the 26th of November, the Privy Council sent to the London County
understood that notice would not be given before the 1st of January. Bankruptcy Court, said : Before entering upon the business of the day I Council the very notice of which a pledge had been given that it should wish to mark our senee of the great loss this department has sustained in not be sent. So that the pledge so given was most distinctly broken, the death of Mr. Henry Perkins, the very able clerk to the senior registrar. The Attorney-General said that the Act contemplated that there should Mr. Perkins has occupied that responsible position for the last twenty: be six months from the 1st of January, and that there should be a period seven years, and during that period his thorough knowledge of both
The bankruptcy law and practice has been of the greatest assistance to the hon. member had not given any dates, but the order was not made until
of three months for the county council to exercise its judgment. registrars, and he was always most courteous and patient in placing his
the 18th of July. It came to the knowledge of the Lord Chancellor that ripe experience at the disposal of all thore practi:ing in this court. His
the county council would go out of office on the 12th of March, and, death leaves a gap which will not easily be filled. Mr. J. C Brough, on bebalf of the bar, and Mr. A. H. Wildy, representing the official receivers, it would not bave an effective interval of three months. In order to give
therefore, unless the council had come notice before the 1st of January, joined in the registrar's expression of regret and in acknowledging the the county council a full three months' interval to exercise its judgment efficiency and courtesy with which Mr. Perkins uniformly discharged all
communication of the draft notice was made at the end of November. In the duties of his office.
May the new county council was formally coinmunicated with, and it Mr. Justice Grantham, says the Times, after bis day's work in couri was asked whether it wished to pass any resolution to reject this order. proceeded on Saturday night from Leeds to London. On bis return, in The new county council was indisposed to bave the matter brought before order to continue the work of the assizes on Monday morning he was it, and subsequently the order lay on the table for forty days, and no one Euffering to such an extent from a rheumatic affection of the knees that he said a word to prevent it from being carried into effect. For the hon. was advised by bis medical man that he should rest for a day. His member's allegation that he had said that no notices would be served lordship, however, was desirous of causing no inconvenience to the suitors until the 1st of January there was no ground. The only thing he said was and others, and be, consequently, decided to hear the cases which were that no steps would be taken to put the provisions of the Act into force set down for trial before him at the judge's lodgings at Leeds. until January, 1898. Accordingly the learned judge heard three cases at the lodgings, which occupied his attention from 10.30 am. until nearly 6 p.m., but throughout the whole day he was obliged to lie down on a sofa in the drawing-room, wbich was formed into a court for the occasion. The
THE PROPERTY MART. members of the bar were not required to wear their wigs and gowns wbilst conducting the cases in which they were engaged. His lordship,
SALES OF THE ENSUING WEEK although obviously still suffering, was fortunately able to sit in the Crown Aug. 18.-Messrs. H. E. Foster & Cranfield, at the Mart, at 2: Court on Tuesday.
REVERSIONS: On the 4th inst., in the House of Commons, on the vote to complete the To One-third of Freehold and Leasehold Properties producing £257 per annum; sum of £7,985 for the Land Registry Office, the Attorney-General said
lady aged 63. Solicitor, J. Bannister Brown, Esq., London. that for years this department had been carried on at a loss, and they
To One-seventh of a Trust Estate in Colonial an i Foreign Railway Stocks, value should wait and see whether the improvement was permanent before they
£10,960; gentleman aged 79, and lady aged 69. Solicitor, Arthur Tyler, proposed to reduce the fees, all the more that there had never been a
Esq., London. complaint of the actual expense on the part of people who made use of To One-thirtieth of a Trust Funi, value £22,560; lady aged 76. Solicitor, the office. Since 1893 the total business of all kinds had increased by
Edward M. Lazarus, Esq. something like forty or fifty per cent., so that the public were recognizing To One-fourth of Dublin Leaseholds producing £159 per annum, and One-half the value and importance of land registration. The registrar's salary
of £2,984 in Consols; lady aged 65. Solicitors, Messrs. P. J. Gordon & Son,
London, bad come down from the time of Lord Westbury, but it would be revised when the next appointment was made. He was not able to say anything
ANNUITY: about the future work under the Land Transfer Act of last Session,
Of £50; lady aged 30; with policy. because the order did not come into force until the latter part of the year, or possibly later. But the work was going to be conducted at one In the " Graphic" and "Daily Graphic." registry, and the scale of fees, though moderate, would be such as would POLICY: more than pay the expenses of the official staff required. As the result of For £1,000. Solicitor, Harold Fawssett, Esq., London, an amalgamation of two offices there would be one registry, as far as (See advertisements, this week, back page.) Middlesex and London were concerned, at which all the work would be carried on.
In the course of a debate on the Estimates, the Attorney-General gave an interesting account of his fees. He said that for 1895-96 he received WARNING TO INTENDING House PURCHASERS AND LESSEBS.--Before pur. for contentioas business £3,916, and for 1896-97 £6,039. The Solicitor- chasing or renting a house, have the Sanitary Arrangements thoroughly General was not in office in the early part of the year, but he received for Examined, Tested, and Reported Upon by an Expert from Messrs. Carter 1895.96 £691, and for 1896.97 £3,365. The reason why his own figures Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of ful were so high in those years was because, in the first place, he had the particulars. (Established 21 years.)--[Advt.]