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consideration had been expressed by the declaration of trust to be apportioned to the leasehold premises so as to make that instrument chargeable according to its terms with ad valorem duty as a conveyance on sale, the whole consideration, except the sum of £1,462 16s. 3d., apportioned by clause 2 of the agreement as the consideration for the furniture, stock-intrade, and cash, was to be regarded as applicable to the other property sold under the agreement, and that the instrument was chargeable under section 59, sub-section 1, of the Stamp Act, 1891, with ad valorem conveyance duty on £5,585 8s. 4d., less the sum of £1,462 16s. 3d., making the net sum of £-1,122l2s. 1d. They accordingly assessed the ad valorem stamp duty of £20 15s. upon the agreement, being the ad valorem duty of 5s. for every £50 of the sum of £4,122 12s. ld. payable under the head “ Conveyance or Transfer on Sale” in the First Schedule of the Stamp Act, 1891; and they also assessed the fixed duty of 10s. in respect of the agreement for sale of the premises, furniture, stock-in-trade, and cash. The instrument was stamped accordingly. The questions for the opinion of the Divisional Court were——(l) whether the instrument was chargeable with the ad valorem duty of £20 15s.; (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 of an equitable interest in property within the meaning of section 59, sub-section 1 ; that, as the goodwill was incapable of being severed from the enjoyment of the leasehold premises, the instrument was not an “ agreement for the sale of an estate or interest in any property except lands,” and was therefore not liable to ad valorem duty upon that portion of the consideration attributed to “lease and goodwill” ; and that it was liable to ad valonm duty upon the amount of the book debts only. From this decision the Commissioners oi Inland Revenue now appealed.
Tm: Covnr (A. L. Smmr, Rronr, and Vauonsn Wranrsms, L JJ.) took time to consider their judgment. On the 5th of August the court (Vane:-rsx Wrnnmns, L.J., dissenting) allowed the appeal.
A. L. Snrrrr, L.J., in the course of a written judgment, said the first question was, taking the instrument of the 19th of March, 1895, by itself, did the option given by clause 6 to the purchasers to take a declaration of trust, if so minded, instead of a conveyance of a legal interest, constitute a contract or agreement for the sale of an equitable estate or interest in any property whatsoever? Apart from that option, the document was a contract to convey a legal and not an equitable interest. To constitute a contract or agreement within the meaning of section 59 there must be correlative obligations on each side -on the one side to sell, and on the other to purchase; there was here no obligation on the part of the purchasers to take a declaration of trust and therefore the instrument of the 19th of March, 1895, was not a contract or agreement for the sale of any equitable interest whatever within the section. The fact that at the time the instrument was taken to the commissioners the purchasers had taken a declaration of trust did not convert the instrument into a contract or agreement for the sale of an equitable interest, for the question was what the instrument was when it was signed. The second question was whether the goodwill which was agreed to be sold and purchased by the instrument was nsale of property other than land. It was clear that goodwill was property within the meaning of the Stamp Act (see Potter v. Uommiarioners of Inland Revenue (2 W. R. 561, 10 Exch. 147) ), and it was also clear that goodwill was not land. Goodwill therefore came within the express terms of section 59 as being property other than land. It was suggested that the goodwill here was only the enhancement of the value of the premises and could not exist apart from those premises; but that was not so. Goodwill was .as capable of being sold as a separate entity for what it was worth as was the tenant’s interest in the lease. Here the parties had expressly sold the goodwill, licences, and contracts relating thereto, separate and apart from the lease and other entities contracted to be sold. This goodwill was therefore clearly not land, and the contention of the Crown was therefore right and the appeal must be allowed.
Bronx, L.J., also read a judgment agreeing with the above.
Vsvorrsx Wrnnmns, L J ., read a judgment dissenting from the decision arrived at by the other Lords Justices. He was of opinion that the instrument was not a contract or agreement for the sale of any equitable estate or interest in any property whatsoever. It was a contract for the sale of a legal interest, and the option given to the purchasers to call for a 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, whether the instrument was a contract or agreement for the sale of any estate or interest in any property excepting lands, tenements, or hereditaments, this depended upon whether the goodwill, which was bya separate clause included in that which was agreed to be sold and purchased by this instrument, was sold and purchased as land—that was, as something enhancing the value of the land and inseparable from it, or whether it was sold and purchased as property other than land. There could be no doubt that goodwill might be so inseparably connected with land— e g., with a particular house, as to pass under a conveyance of land (see Lindley on Partnership, 6th ed., p. 441). In the present case the goodwill of the hotel was included in the lease, and by the terms of the lease the business could not be removed from the house demised without the landlord's consent. The goodwill was made inseparable by the terms of the lease. The goodwill did not belong to the vendor so that he could sell it apart from the lease. It was art of the reversion of the landlord. Moreover the goodwill of a leasehold public-house had generally been treated as part of therdernised premises : Ex part: Pannett, Ra Kirclam (29 YV. R. 129, 16 Ch. I). 226). That case shewed that goodwill might, for the purpose of conveyance, be separated from realty, and it so separated it would be liable to duty as property; yet if it was not so separated it would be treated, on a sale of the premises where the business was carried on, as something enhancing the value of the realty, and, pro tanto, aug
menting the duty on a conveyance of the place where the business was carried. on. His lordship then referred to Oommiuionerr of Inland Revenue v. Angus (38 W. R. 3, 23 Q. B. D. 579) ; Potter v. Commissioners of Inlrmrl Revenue (2 W. R. 561, 10 Exch. 147) ; Cooper v. Metropolitan Board of Works (32 W. R. 709, 25 Ch. D. 472). . In the present case, in his opinion, it was not the intention of the parties to sell the goodwill as something separate from thehotel. The purchasers could not deal with or enjoy the goodwill separately from the hotel. The vendor had no power to sever the business from the hotel. There were no separate prices in the contract for the hotel and the goodwill. He could find no fact in the present case from which one could infer an intention to deal with the goodwill separately from the hotel. Appeal allowed.—-Counsan, A. T. Lawrence, Q,.C., Spearman, and IV. R. Smith ; Sir R. E. Webster, A.G., and Dandrwcrts. Soucrrons, A. E. Gri[fitIu; Solicitor of Inland Revenue.
The plaintiff is the owner of some cottages at Hull abutting on the works and premises of the gas company. The gas company are constructing a very large new gasholder close up to the back of some of the plaintiff's cottages. The circular tank in which the defendants’ gasholder is to float is constructed, but the gasholder itself is not completed. The plaintifi sued the gas company and also the contractors who built the tank for the injury done to his cottages by the subsidence of the soil which was admitted to be due to the excavation which was necessary for the construction of the tank. He charged negligence both as to the choice of a plan for carrying out the work and as to tho carrying out of the plan adopted. He alleged that the subsidence was caused by the withdrawal of silt suspended in water from a stratum of what was known in the district as “running silt,” while the defendants alleged that the subsidence was substantially caused by the withdrawal of water alone, so that on this part of the case the question of fact was whether there had been negligence and what was the material pumped by the contractors from the bottom of the trench they dug. The plaintiff also claimed an injunction against the gas company to restrain the erection of a gasholder of such height as to obstruct access of light to the cottage windows. On this part of the case the question of fact arose as to what effect the proposed gasholder would have on the access of light to the cottages. The defendants insisted that as a matter of law they had a statutory power coupled with a duty to erect the gasholder, which, apart from any question, gave them the right to do what they had done and proposed to do, notwithstanding they might thereby injure their neighbours’ property. They also contended that they had a natural right to abstract water or silt in suspension from a. hole in their own ground to the detriment of their neighbours. North, J ., on the 15th of February found as a fact that the gasholder when erected and inflated to the proposed height of 100 feet must interfere with the access of light to the cottages, but could not say that the plan of doing the work was improper, and held that it had been skilfully carried into execution. He also held that subsidence was due to the abstraction not merely of underground water but also of silt held in suspension in the water abstracted, and reserved judgment on the points of law.
August 4.—Noarr-r, J ., held that the argument that the company had a statutory duty to exercise its statutory powers was unsound. The company was under no obligation to use that particular site. He granted an injunction against the company to restrain it from raising the gasomcter more than sixty-eight feet, and gave £340 damages against both the company and the contractors.—Com\'ss1., Upjohn, Q, C., and D. Pollock ,Haldane, Q.C., Macnayhten, Q.C., Booms, Rawlina, Q..C., Bardrwell, Hecksclwr. Souclroas, Uollyer-B;-istow §~ 6'0. ,' Jaques §- 0'0.
[Reported by G. B. H.uur.-rox, Barrister-at-Law.]
ROBERTS v. HEATON. Stirling, 9th August.
This case raised the question whether a covenant on the part of the lessee contained in the lease of a public-house to buy beer from the lessor bound the lessce to buy beer from persons to whom the benefit of such covenant had been expressly assigned by the lessor. By an indenture of underlease dated the 18th of July, 1895, and made between G. E. Curtis (thereinafter called the lessor) of the one part, and It. St. J . Dwyer (thereinatter called the lessee) of the other part, the messuage or dwelling-house known as the Royal Hotel, Dawlish, in the county of Devon, was demised unto the lessee, his executors, ndministutors, and assigns, from the 20th of J une, 1895, for the term of 19 years thence next ensuing at the rent during the first six years of the said term of £187 10s., and during the remaining years of the said term at the rent of £197 10s., and the lessee thereby covenanted with the lessor in manner following—that is to say, for the payment of the rent, rates, &c., and to permit the lessor to enter and view the premises, and also “ that the said lessee, his executors, administrators, and assigns, will, during the said term, so long as the necessary licences can beobtained, use or cause the premises to be used only as an inn, tavern, or public-house, and that they will not carry on or suffer to be carried on upon any part ot the said premises any trade or business
other than that of an innkeeper and wine and spirit merchant, and will during the said term purchase from the raid Gr-org: Edward Curtis all beer whether in bottles or draught which shall be brought on the said premises for the purpose of sale and will not during the said term purchase for the purpose of sale any beer from any other person or persons whatsoever.” Except in the covenant above set out the lessor was throughout the said underlease referred to as “the lessor," and his assigns were expressly referred to. The lease was subsequently assigned by Dwyer to a Mr. Shallcross, and by Shallcross to Mrs. Heaton, the defendant. At the time the lease was granted the said G. E. Curtis was the owner of a brewery known as the Teign Brewery, and of the business of a brewer carried on at such brewery. By an indenture, dated the 14th of July, lS96, G. E. Curtis conveyed the said brewery and assigned the goodwill of the said business to J. Roberts, and by another indeniure of even date Curtis assigned to the said J . Roberts, his executors, administrators, and assigns, the said Royal Hotel subject to and with the benefit of the said underlease, and the benefit of the said covenant was thereby expressly assigned. The plaintiffs subsequent] y became entitled to all the premises so assigned to the said J . Roberts. The plaintiffs having ascertained that the defendant had purchased for the purpose of sale in the said Royal Hotel, and had in -fact sold thereon beer from persons other than the plaintiffs, commenced this action against the defendant, and by the writ claimed an 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. Curtis was still living.
Srianmo, J ., refused to grant the injunction and said that the question he had to decide was whether on the true construction of the above covenant the benefit of the lessee’s obligation to purchase beer oflf Curtis passed to Curtis’s assignees. In approaching the consideration of such u covenant there appeared to be no reason why it should be presumed to have a wider rather than a narrower construction. The covenant was free from ambiguity, and was confined to purchases from Curtis personally, and that view was confirmed by the context.-—Cori\'sai., Jenkins, Q.C., and Jfiolrlem ; Zjojolm, Q.O., and Ward Coldridge. Sonicrrous, Mann §- Crimp, for T. §- J. Hutoliings, Teignmouth; Prosion, Stow, g- I’rerlon, for Friend, Baal, §~ Tarbct, Exeter.
This was a summons in the action to enforce an award made under the following circumstances. Article 128 of the articles of association of the defendant company provided that it a sale or arrangement should be made under the Companies Act, 1862 (s. 161), the purchase-money to be paid 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 to which the diszentient member would have been entitled on the completion of the sale or arrangement had he not expressed his dissent. In the autumn of 1897 a scheme was brought forward for the reconstruction of the company, and resolutions were passed for a voluntary winding up. On the 9th of September the plaintiff dissented from these resolutions. On the 15th of October the liquidater entered into an agreement for the sale of the assets of the old company to a new company. The price was to be 24,900 fully-paid shares of the new company which were to be applied for by the shareholders in the old company. On the 13th of November the plaintiff brought this action to restrain the liquidator parting with the assets or undertaking of the old company without providing for his interest under section 161. The matter was referred to arbitration but the company accepted the arbitration under protest. An 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.
Srrnuso, J .—Two objections have been taken to the award, on behalf of the company and the liquidator : first, that the event on which arbitration is to take place under section 162 of the Companies Act has not happened; and, secondly, that the event which gives the umpire jurisdiction has not happened. As to the first objection, it is contended that article 128 constitutes an agreement within the meaning of section 162, and that the right to arbitration is thereby excluded. Against this it is first said that the agreement must be between the disputing parties and that these are here the dissenting shareholder and the liquidator. Having regard to the language of section 162 and the decision in De Rosa: v. Anglo-Italian Bank (17 ‘V. R. 728, 4 Q. B. 462), I am of opinion that the disputing parties must be the shareholder and the company and not the shareholder and the liquidator. But then it is Bail that the articles constitute an agreement between the shareholders inter as and not between a shareholder and the company. On the authority of Eleg v. 1’:/.9iti1;e Assurance Co. (24 W. R. 252 and 338, 1 Ex. Div. 20 and 88) and Browns v. Lo Trinillud (36 W. R. 289, 37 Ch. D. 1) I think this objection is well founded. I also think that the objection that article 128 only applies where the dissentient shareholder would have been entitled to "shares, stock, or other propcrty ” on the completion of the arrangement, is well founded. Here, under the agreement of the 15th of October, 1897, he would only have been entitled to a sum of money. On these grounds I think the first objection taken fails. The second turns on the construction of the First Schedule to the Arbitration Act, 1889, clause (v). It is said that the
arbitrators failed to make their award within three months “ after being called on to act by notice in writing.” That is made out in this way. On the llth of January, 1898, notice was served on the arbitrators, requiring them to appoint an umpire. The award was not made till the 30th of April, 1898, and the question is whether thc notice of the llth of January is a notice calling on the arbitrators to act within the meaning of the Act. There is no decision as to the meaning of the words “being called on to act by notice in writing," but in Baker v. Stepliena (15 W. R. 902, 2 Q. B. 523) it was held that the words “entering on the reference ” meant not merely making an appointment to hear the parties, but actually beginning to hear them ; and that the time for making the award should be reckoned not from when the arbitrator accepted the oflice, but from when he entered into the matter of the reference either with both parties before him or under a peremptory appointment enabling him to proceed exports. That case does not govern the present, but it throws some light on it. It seems to me that “called on to act " means not called on to do some specific thing connected with the arbitration, but called on to enter on the substantial business of the reference. I think therefore that this objection is well founded, and that the jurisdiction of the umpire had not arisen.-—Coi'.\"siir., Birokloy, Q,.C., and Gore-Browne; Illattin-son, Q.C., and Beddall. S0r.ici'ous, Seal ; Booth 5- Smee.
This was a motion to restrain R. C. Piercy, the heir-at-law of the testator, from preventing an order of North, J., dated the 6th of November, l896, from being registered in Italy, and from taking proceedings inconsistent with an order dated the 9th of April, 1895, giving the plaintifis and defendants leave to apply to register the said order in Italy. A summons by the heir-at-law that he might be at liberty to take such proceedings in Italy to decide who was entitled to the immovable property of the testator as he might be advised had been dismissed. North, J , had decided (1895, 1 Ch. 83, p. 88) that “ where there is an English owner 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 pzggke that money itself subject to Italian law.” On the 5th of J une,
5, notice was given to the heir-at-law of the intention of the laintifis and defendants to apply to register the judgment of North}: J . , in Italy. The heir-at-law attended the proceedings and opposed the application, and the Court of Appeal in Cagliari, in the civil action of 1’ic1'c_|/ v. Pioroy, stated that there was a difference between the English law and the Italian code as regards real property in Italy, and rejected the claim for the execution of the judgment of the High Court of Justice in London of the 6th of November, 1896, in the Italian territory. Burhby v. lllmidy (5 Mad. 297), Boot/r v. Lcycester (1 Keen 579), and Harrison v. Gurney (J . & W. 563) were cited in favour of the motion. For the heir-at-law it was said that he had done nothing inconsistent with the order of the English court, but merely defended proceedings brought against him, and ‘that the cases cited were distinguishable, as in all of them the person restrained was plaintiff in the foreign proceedings. It would be, it was said, without precedent to restrain a defendant in a foreign court, against whom an order for costs was asked, from arguing in his own defence.
N ORTII, J ., however, made an order restraining the respondent from preventing the order of the 6th of November, 1894, from being registered in Italy, and from taking any proceedings or doing any act inconsistent with the said order, and in particular from opposing any appeal which may be brought by the trustees against the judgment of the Italian court. And he ordered the respondent to do all things that may be necessary on his part to effectuate the sale of the Italian land.—Courzsizr., Cozens-Hardy, g0 ,&1£lD?lp80n, St. John Ulerke. Somcrroas, Field, Roscoe, Q 0'0. ; Goddm,
on, o mes.
The appellants are a waterworks compaiiy constituted by an Act of 51 Geo. 3, c. clxix., authorizing them to supply water in certain parishes in London and elsewhere. By the Grand Junction \Vaterworks Act, 1852, the company received additional powers to obtain a supply of water from the Thames at Hampton and to construct a reservoir and other works on a triangular piece of land where the roads loading respectively from Sunbury and Staines to Hampton join. The provisions of the \Vaterworks Clauses Act, 1847, were incorporated into the Grand Junction XV-aterworks Act, 1852, and by section 93 of the Act of 1847 it is enacted that “ nothing herein or in the special Act contained shall be deemed to exempt the undertakers from any general Act relating to waterworks or any Act for improving the sanitary condition of towns and 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 In May the appellants were summoned upon the information of the respondents for having committed an offence under the Public Health (Buildings in Streets) Act, 1888, by unlawfully, without the written consent of the respondents, erecting part of a building—an engine-house—on their ground at Hampton which stood beyond the front main wall of the buildmg on either side thereof situated in the Upper Sunbury-road, and did continue to suffer the same to remain standing after written notice had been served on them by the respondents. The magistrates who heard the summons held that the appellants had committed an offence against the Public Health Act, 1888, in so erecting the engine-house and continuing it after receiving notice of the offence from the respondents, and ordered the appellants to pay a penalty of one shilling a day and the respondents’ costs. The appellants then obtained this case. Counsel on behalf of the appellants contended that they were authorized by their special Acts to construct upon such portions of the lands acquired by them under and for the purposes of their undertaking, as they in the exercise of their discretion thought proper, all works, including buildings for engines, as were necessary, and that the provisions of the Public Health Act, 1888, did not limit their statutory power to erect such buildings as were required to carry out the undertaking. Moreover, they said that the Act of 1888 was not an Act for improving the sanitary condition of the district, and therefore they were not bound to conform to it. For the district council it was subniitted that the Act of 1888 was an Act for improving the sanitary conditiin of towns within section 93 of the Act of 1847, and that the special powers granted the waterworks company by section 12 of the Act of 1847, or by section 25 of the Act of 1852, did not exempt the appellants from the provisions of the Act of 1888.
_ Tna _Ooua-r (M.\rns\v and KENNEDY, JJ.) held that the conviction was right, since the provisions of the Act of 1888, in their otpinion, applied to the appellants by virtue of section 93 of the \Vaterworks ‘lauses Act, 1847. Judgment was accordingly given in favour of the district council.COUNSEL, Bosanquef, Q.C., Macmorrim, Q.C., and R. C’. Glen; H. H. Asquifli, gl Uourlliops Munroe, and ll’. H. Lma. Sotroiroiis, Bircham if Co. ; Kent
_ Case stated by Hawkins,_J. The defendant was indicted at the Lewes hummer Assizes under section 1 of the Betting Act, 1853, for having used a public-house of which he was the occupier for the purpose of money being received by liim as and for the consideration for promises and agreements to pay thereafter certain sums of money in events of and relating to a horse-race called the Derby Stakes. The question was whether the sale and receipt of the piirchase-money for tickets in a sweepstake by the defendant in the bar of the public-house was an offence under the above section. The sweepstake was to consist of a thousand 8l1l)t!0l'lptlO1J9_Of 2s. 6d. each, which if entirely subscribed would amount to £125. Of this 10 per cent. was to be deducted by the defendant for management expenses and the balance distributed in prizes to the drawers of horses, varying from £45 to the drawer of the winning horse to five shillings to each drawer of a horse which did not start in the race ; these prizes were the sums mentioned in the indictment as the subject of the defendant s alleged_promise to pay. The tickets were bound up in books, a counterfoil being attached to each. The subscriptions were received by the defendant and his servants in the bar of tlie public-house and a ticket was delivered to each subscriber and his name and address entered in the _cou_iiterfoil. Before the time for the drawing of horses arrived the police intervened and stopped the further conduct of the sweepstake. In previous years the drawings had taken place in premises adjoining but forming no part of the public-house. The defendant was not to receive any part of the money except the 10 per cent. for expenses, which the learned judge considered was a reasonable charge, and he gave no guarantee or promise to_pay any sum to anybody except to distribute the prizes in accordance with the drawings. Hawkins, J ., entertained a doubt as to whether there was any evidence to go to the jury of an offence iuider the section, but ho directed them to convict with a view to stating this case for the opinion of the court for consideration of Crown Cases Reserved. The latter part of section 1 of the Betting Act, 1853, makes it an offence for the owner or occupier of a house to open or use it for the purpose of any money _or valuable thing being received by or on behalf of such owner or occupier “ as or for the consideration for any assurance, undertaking, promise, or agr6ement,_ express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race": Carlill v. The Om-bolic Smoke Ball 00. (1892, 2 Q. B. 484), Sugar v. Stoddart (18 Cox C. C. 165), Camimurla v. Hulton (39 W'. R. 540), and Allport v. Nut! (1 C. B. 974) were cited.
Lord Russi-ir.L or KXLLO“’BN, C.J.—The learned judge at the trial expressedgreat doubt as to whether there was evidence of this offence to go to the jury. I think that that doubt was well founded. [ii my opinion there _was no such evidence. The general importance of the case makes it desirable that I should state the grounds for that opinion. The allegation that the defendant is a publican is wholly irrelevant; the case would have been the same if this transaction had taken place at ii club or elsewhere. It seems t_o me that what took place was a lottery, or at all events was not a betting transaction. When the Betting Act, 1858, was passed there were already statutes dealing with lotteries, and betting was then treated as a sepai-ate_ subject for legislation. The Act is “ an Act for the suppression of betting-houses ” ; it recites that a kind of gaming had_sprung up by the opening of betting-houses and offices, and the Iweivlng of money in advance by the owners or occupiers on their
promises to pay money on events of horse-races and the like contingencies, and it then proceeds to deal with the evil so pointed out. The first clause of section 1 deals with a house being opened or used for the purpose of betting with persons resorting thereto. The second clause covers cases in which persons do not necessarily resort to the house. [His lordship read the clause above set out.] Was there any evidence that the defendant used this house for the purpose of any money being received by him or on his behalf as the consideration for a promise to pay money on an event of or relating to a horse-race? The section points to a contractual relation between the keeper of the house and the person who pays the money, a promise by the former that he will pay a sum to the latter in certain contingencies. The facts of this case show no such relation; all that the defendant undertook to do was to manage the sweepstake and after retaining his reasonable expenses to distribute the prizes out of the contributions. The persons who took the tickets created a common fund which the defendant merely received as a stakeholder and undertook to distribute. The clause aims at transactions in which a promise to pay in a certain event is made by the person who receives the money, and here the defendant made no such promise. Again, to bring a case within the clause the “ event ” on which the payment is to be made must be an “ event of or relating to ahorse-race " ; that was not the case here, the prizes depended on the event of the drawing, which would have been equally effective if it had taken place after the race had been run instead of before. Turning to the rest of the Act it is clear that every section of it is conversant with the keeping of houses and places for the purpose of betting. This is made very clear by section 7, which prohibits the advertising of such places. In my judgment the case does not fall within the letter of the Act or the category of evils with which it deals, and there was no evidence of an offence under it. I must not be understood as saying that the conduct of the defendant did not constitute an offence. I think the transaction was a lottery, but that is not the question which we have to consider.
HAWKINS, M.\'iiiiiw, KENNEDY, and BIGHAM, JJ., concurred. Conviction qi1ashed.—-Couusnn, R. .D. Muir ; Hora:-e Avory. SOLici'r0ns, Davenport, Jones, 4' Gleniatar ; The Treasury Solicitor.
[Reported by T. R. C. Dita, Banister-at-Law-]
Application for bail and for a writ of habm corpus on behalf of Major Spilsbury, against whom the police magistrate at Bow-street had made an order under the Fugitive Offenders Act, 1881, directing him to be sent to Tangier to be tried at the Consular Court there on the charge that he, being a British subject, did, on or about the 13th of January, 1898, on the Sus coast, within the territorial waters of the Empire of Morocco, in the steamship Tourmaline, with others to the number of three or four, unlawfully and riotously assemble, and riotously make an assault upon certain soldiers of the Sultan of Morocco by firing on the Sultan's ship Hossanie, and participate in an assault on the boats belonging thereto and at the time manned by such soldiers. Application was also made for an order that the trial should take place at Gibraltar instead of at Tangier. The facts sufficiently appear from the judgment of Lord Russell of Killowen, G.J. As to the power to admit to bail, section 5 of the Fugitive Offenders Act was relied upon as showing that there was no jurisdiction to do so. That section provides that “ a fugitive when apprehended shall be brought before a magistrate who . . . shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence committed within his jurisdiction. If the endorsed warrant for the apprehension of the fugitive is duly authenticated and such evidence is produced as . . . according to the law ordinarily administered by the magistrate raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this part of the Act applies, the magistrate shall commit the fugitive to prison to await his return and shall forthwith send a certificate of the committal, &c."
Lord RUSMZLL or KILLOWBN, C.J.—The Fugitive Offenders Act, 1881, has been made applicable to the dominions of the Sultan of Morocco by an Order in Council under section 36 of the Act. It is admitted that the offence charged against the defendant is one in respect of which an order under the Act for the return of the fugitive may be made, but it is said that the evidence does not raise a “ strong or probable presumption " that the defendant committed the offence. The broad facts were that the defendant was in charge of T/is Tourmaline, a vessel sent to the coast of Morocco by a trading syndicate. At Antwerp the defendant had purchased certain arms. He claimed to have treaties with certain independent tribes. Those trihes, however, were said to be within the jurisdiction of the Sultan. The Tourmaline appeared on the coast—not near any commercial port. Arms and tents of European manufacture were landed. The tribes met the defendant and three of his companions who had landed. The defendant returned to the vessel, leaving the others on shore. Presently there appeared a man-of-war belonging to the Sultan, which prevented access between The Toimrialine and the shore. Fighting took place on the shore, and shots were fired from The Tourmaline. In a letter from the defendant, which was an important piece of evidence, he stated that he ordered his ship to be cleared for action. On these facts there was suillcient to justify the magistrate in making the order. They
raised the “ strong or probable presumption ” mentioned in the section. The question of diifculty that remains is this. Failing the success of the application to upset the order altogether, can the court grant the defen
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 given ? In th d '
o er wor s, is the onus on the defendant to prove the existence of the power? I think not. Apart from any statute the court has a power to admit to bail. The matter must therefore be approached in this way-does the Act expressly or impliedly do away with that power? Nothing in it does so in express words. Does it do so by implication? If it does the result would be that, though the magistrate might give bail during the whole of the possibly lengthened period of the inquiry and the court of the country to whom the fugitive was sent might give hail also, yet the High Court could not grant bail when once the order for return was made. I have come to the conclusion that unquestionably the court has the power to grant bail. Some difficulties have been suggested as to the consequences if hail were granted. Suppose a man on bail refused to deliver himself up, it is said there is no power to arrest him. Even if that were the case, the answer to the objection is that proceedings might be recommenced against him, and a fresh warrant issued on which he might be arrested. This would cause delay, but no insuperable difliculty. It is impossible to suppose that if the Legislature had intended to interfere with the ancient and well-known power of the court to grant bail that it would have left itto implication only. The power, however, is one to be exercised with extreme care and caution and 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 fl. magistrate of a prisoner to take his trial at assizes. The inquiry before the magistrates only began when the fugitive was retumed. Upon the question whether in the exercise of the court's discretion bail should be granted or not, I have come to the conclusion, not without considerable doubt, that in this case the court ought not to grant bail; it will largely depend on the defendant himself how soon he shall return; doubtless if the defendant applies for an early removal it will be granted to him. The only remaining point was whether ie trial should take place at Gibraltar instead of Tangier. It is not only within the competence, but also within the duty of the court, if there are reasons which ought to operate on them 'udicially for the trial taking place at Gibraltar, to give effect to them. Ellis 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 Gibraltan]
WRIGHT, J ., concurred, and added that the decision that the court had 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 treaty with the foreign power had to be considered.
KENNEDY, J ., concurred.-—CouNseL, Cohen, Q,.C., and Ellis Griffith; Sir J2. E. Webster, A.G., Hmry Sutton, and Bodkin. Soucirous, Hollams, Son, C'owa1'd, §- Hawkeley ; The Treasury Solicitor.
[Reported by T. R. C. DILL, Barrister-at-Law.]
Solicitors’ Cases. R0 FUBBEB, Ex parle G. 8. WATKINS. Kekewich, J. 4th August.
SOLici'ron—M0ii'i'o/ion or Pi:asoiv.ii.'i'i'—Cos'rs Acconnmo T0 run ScamsSouci-rona’ RBMUNERATIOX Aer, 1881 (44 & 45 Vicr. c. 44), GENERAL Onmm, SCHEDULE I., I’.~.u'r I.
This was a summons by a mortgagor's solicitor to review the taxingmaster's certificate, whereby the solicitor had been disallowed certain costs relating to the negotiation of several mortgages and charged according to the scale in Schedule I , Part I , of the General Order to the Solicitors’ Remuneration Act, 1881. The mortgage security consisted of a reversionary interest under certain wills (being in part, at any rate, an interest in personalty), and of a fund in court, and the morigagor‘s solicitor having procured the required advances from certain of his own clients, charged the mortgagor with costs for negotiation according to the scale in Schedule I. The taxing-master disallowed these costs, on the ground that the mortgage security did not consist exclusively of “ freehold, copyhold, or leasehold ” property. On behalf of the solicitor it was contended that the “ negotiation " of the loan was not confined to a loan the security for which consisted exclusively of “ freehold, copyhold, or leasehold,” but referred to any kind of security, and that because the scale fee for deduting ai dinvestigaiing title was restricted to cases of " freehold, copyhold, or leasehold ” property, it did not follow that the fce for “ negotiating a loan ” was similarly restricted.
"Ksriiawrcn, J., held that the solicitor was entitled to charge the scale fee for negotiating the loans, notwithstanding that the mortgages were not exclusively of “ freehold, cop) hold, or leasehold ” property, and remitted the matter to the taxing-master accordingly.—Cooi~:sai., P. 0. 1-l1l¢1'¢‘M‘6, Q-C-, H1111 G. H€rIl1¢fwn,- Warringlon, Q.C., and Stewart Smith. SOLICITORS, R. Furber ; Hear §~ Fowler.
to the full extent of three months. The order was accordingly drawn up and the 3rd of November, 1896, was inserted as the date when the suspension began. On the 19th of September, 1896, the solicitor wrote to the officer of the court to say that, having completed his business, he desired that the order should take effect from the 21st of September. The order was not however altered. The solicitor now applied to the Lord Chief Justice to rectify the order by making the suspension extend from the 21st of September, 1896, to the 21st of Se tember, 1898, instead of from the 3rd of November, 1896, to the 3rd of glovember, 1898. On behalf of the Incorporated Law Society, who opposed the motion, it was contended that the solicitor, having once exercised the option given to him, could not afterwards claim to exercise the option in a different way.
Lord Rv:ssxr.i. or KILLOWBN, C.J., dismissed the motion.-Cocxsxc, C. 12'. Jams ; Frank Phillips.
[Reported by C. G. WILBBAHAI, Bari'lst€!‘—BirI&W.]
Mr. DAVID Giuir Baoo, barrister-at-law, died on the 22nd ult. from the effects of an accident. On the morning of Tuesday, the 19th iilt., Mr. Begg was in Lincoln's-inn-fields, and was about to turn the corner of Portugal-street, when he suddenly fell. Several bystanders ran to his 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 bones. On the following Friday death took place quite unexpectedly. Mr. Begg was a son of the Rev. Alexander Begg, of Fraserbnrgh, in Aberdeenshire, and was educated at the King's College and University in Aberdeen, where he gained a bursary and other distinctions, but in consequence of the death of his father he was obliged to leave the university without taking any degree. He then entered a solicitor’s ofice, and eventually by his own exertions found means to be called to the bar in 1859. He practised as an equity draftsman and conveyance: with considerable success, and was esteemed for the soundness of his judgment and for his careful and accurate style of draftsmanship, which he had acquired as a pupil of the celebrated conveyancer, Mr. Charles Davidson. In 1871 the then Solicitor of the Treasury, Mr. John Gray, Q.C., made an unsolicited effort to get him appointed conveyancing counsel to the Treasury; but the Attorney-General, Sir Robert Collier, preferred tr give that appointment to his own son. Mr. Begg was twice married, and leaves a widow and several children.
Mr. E. M. Wrivaim, J .P., solicitor, of Halifax, died on Wednesday week, at the age of ninety years. He was admitted in 1830, and was, it is believed, the oldest practising provincialsolicitor. He was Town Clerk of Halifax from April, 18-19 (tho year after incorporation), until 1864, but relinquished that ofilce, after holding it for twenty years, wlfin ilafi dfilillfléldfl of his ractice became too great for him to retain it. e t en too into partgership Mr. Phiibrick, Mr. Foster, and his son Captain Wavell, all of whom he has outlived. New the style cf the firm is Messrs. Wavell, Kerr, & Kerr. Though so far_ advanced in years, Mr. \Vavell up to quite recently was closely identified with the business, and the remarkable insight and faithful memory he shewed were evidences that his faculties were unimpaired. He had built up a large practice, and in his younger days had briefed, when they were barristers, nearly all those who are now her l\Iajesty’s judges. He was made a justice of tho peace in 1878. He was one of the original guarantors of the Yorkshire Penny Bank. and was the first president of the Halifax Incorporated Law Society. Mr. Wavell’s disposition, says a local newspaper, was of the _rnost genial type, and he had a happy knack of recalling interesting reminiscences of former days. When he completed his ninety years last September, he received a very large number of letters and telegrams of congratulation from many different parts of the kingdom. Mr. Wavell leaves one son and three daughters, besides numerous grandchildren and greatgrandchildren.
Mr. J om: DARBY, solicitor, of the firm of Messrs. Colebourn, Allen, & ‘ Darbkuof Wolverhampton, has been appointed a Commissioner to [Adm _ ' ter Oaths,
In the House of Commons on Tuesday Mr. Gedge asked the AttorneyGeneral whether the Order in Council made under: the Land Transfer Act, lS9'7, on the 18th of July last, and laid on the table of the House on the 19th of July last, would become valid after forty days if no address disapproving of such order be carried, in the event of Parliament being prorogued before the forty days had elapsed, or would they begin again to run from the first day of next session, as was the case with the orders of council approving charitable schemes. The Attorney-General said: So far as the question is one of law, I am of opinion that under sub-section 9 of section 20 of the Land Transfer Act, which is worded differently from the sections in other Acts of Parliament relating to similar matters, the order will become valid forty days after the 19th of July, unless an address be carried within that time disapproving of such order.
ltlr. Registrar Linklater, on a. recent day, on taking his seat in the Bankruptcy Court, said: Before entering upon the business of the day I wish to mark our sense of the great loss this department has sustained in the death of Mr. Henry Perkins, the very able clerk to the senior registrar. Mr. Perkins has occupied that responsible position for the last twentyseven years, and during that period his thorough knowledge of both bankruptcy law and practice has been of the greatest assistance to the registrars, and he was always most courteous and patient in placing his ripe experience at the disposal of all those practidng in this court. His death leaves a gap which will not easily be filled. Mr. J . C Brough, on behalf of the bar, and Mr. A. H. Wildy, representing the oflicial receivers, joined in the registrar’s expression of regret and in acknowledging the eficiency and courtesy with which Mr. Perkins uniformly discharged all the duties of his oflice.
Mr. Justice Grantham, says the Times, after his day's work in court proceeded on Saturday night from Leeds to London. On his return, in order to continue the work of the assizes on Monday morning he was suffering to such an extent from a rheumatic affection of the knees that he was advised by his medical man that he should rest for a day. His lordship, however, was desirous of causing no inconvenience to the suitors and ot err, and he, consequently, decided t) hear the cases which were set down for trial before him at the judge's lodgings at Leeds. Accordingly the learned judge heard three cases at the lodgings, which occupied his attention from 10.30 :1 m. until nearly 6 p.m., but throughout the whole day he was obliged to lie down on a sofa in the drawing-room, which was formed into a court for the occasion. The members of the bar were not required to wear their wigs and gowns whilst conducting the cases in which they were engaged. His lordship, although obviously still suffering, was fortunately able to sit in the Crown Court on Tuesday.
On the 4th inst., in the House of Commons, on the vote to complete the sum of £7,985 for the Land Registry Ofllce, the Attorney-General said that for years this department had been carried on at a loss, and they should wait and see whether the improvement was permanent before they proposed to reduce the fees, all the more that there had never been a complaint of the actual expense on the part of people who made use of the ofllce. Since 1893 the total business of all kinds had increased by something like forty or fifty per cent., so that the public were recognizing the value and importance of land registration. The registrar’s salary had 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 about the future work under the Land Transfer Act of last Session, 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 registry, and the scale of fees, though moderate, would be such as would more than pay the expenses ot the oificial staff required. As the result of an amalgamation of two oflices there would be one registry, as far as Middléasex and London were concerned, at which all the work would be came 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 for contentious business £3,916, and for 1896-97 £6,039. The SolicitorGeneral was not in oflice in the early part of the year, but he received for 1895-96 £691, and for 1896-97 £3,365. The reason why his own figures were so high in those years was because, in the first place, he had the
whole of the Balfour prosecution and one or two heavy cascs at the Old Bailey; besides, he was engaged in Admiralty arbitratious which involved 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 l>ok at the question from a professional point of view, but only from the public point of view. Government business involved many different classes of workcriminal, charity, foreshore cases, Admiralty and scientific work, and questions of contract. It frequently happened that, in order to get the best assistance which the Government ought to have, they bad to employ a person specially qualified in a particular line of work. It had happened to himself more than once to point out that he was not the fittest person to conduct a particular case, and other couniel had been instructed. The hon. member for Dumfries, when acting as a law ofilcer on salary, had requested members of the House to appear either with him or 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 case.
In the House of Commons on Tuesday, Mr. Gedgc moved: “That this House dieapproves of the Order of Council made on the 18th day of July last, under the Land Transfer Act, 1897, and laid upon the table on the following day, which directs that registration of title to land shall be compulsory on sale in the county of London.” He observed that objections to the Land Transfer Bill were met by two concessions in the Act passed last year-first, that it should in the first instance be tried in one county only and in no other county for three years except at the request of the county; and, secondly, that within an interval of three months from notice being given by the Privy Council of intention to apply the Act, a county might pass aresolution of dirapproval and the Act would not be enforced. The county of Yorkshire was first selected, and promptly objected, and ultimately the administrative county of London was chosen for the experiment. Thereupon he moved an amendment to prevent this. The Attorney-General assured him that the Act would not come into operation until the 1st of January, and the hon. and learned gentleman gave apledge that notices would not be given until January, and thereupon the amendment was negatived. It was quite understood that notice would not be given before the lst of January. On the 26th of November, the Privy Council sent to the London Coimty Council the very notice of which a pledge had been given that it should not be scnt. So that the pledge so given was most distinctly broken. The Attorney-General said that the Act contemplated that there should be six months from the lat of January, and that there should be a period of three months for the county council to exercise its judgment. The hon. member had not given any dates, but the order was not made until the 18th of July. It came to the knowledge of the Lord Chancellor that the county council would go out of office on the 12th of March, and, therefore, unless the council had some notice before the let of January, it would not have an effective interval of three months. In order to give the county council a full three mouths’ interval to exercise its judgment communication of the draft notice was made at the end of November. In May the new county council was formally communicated with, and it was asked whether it wishcd to pass any resolution to reject this order. The new county council was indisposed to have the matter brought before it, and subsequzntly the order lay on the table for forty days, and no one said a word to prevent it from being carried into effect-. For the hon. member's allegation that he had said that no notices would be served until the 1st of January there was no ground The only thing he said was that no steps would be taken to put the provisions of the Act into force until January, 1898.
WARNING T0 mrsnnrso Hovss Puacrrasaas Arm Lr=.sssas.-—Before purchasing or renting a house, have the Sanitary Arrangements thoroughly Examined, Tested, and Reported Upon by an Expert from Messrs. Carter Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of ful