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I VOL. XLIL, No 44.. O The Solicitors’ Journal and Reporter.

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Tan LIST of fifty-two cases which made up the paper of the Vacation Judge on Wednesday included Oppmkaim v. zllarkenzie (reported elsewhere), in which an attempt was made to obtain an injunction against the publication of an alleged libel. That such an injunction can be granted is now well established. Under the Judicature Acts an inj unotion may be granted in all cases in which it shall appear to the court to be just or convenient, and no limitation is placed upon this power. At the same time, since the question of the libel must ultimately come before s jury, the courts have been reluctant to do anything which may have the effect of prejudging the" matter, and the rule has been laid down that the jurisdiction is “only to be exercised in the clearest cases, where any jury would say that the matter com lained of was libellous, and where, if the jury did not so find}: the court would set aside the verdict as un. reasonable " (Ooulson v. Coulson, 3 Times L. R. 846 ; Bonnard v. Perry/man, 39 W. R. 435; 1891, 2 Ch. 269). This assumes, of course, that no s eoial defence, such as privilege, is set up. In the case before lgriinniizoiin, J., it was held that the plaintiifs case was not suficiently clear to justify the intervention of the court, and the injunction accordingly was refused.

Tim metropolitan police magistrates have felt some doubt as to the administration in their courts of the “conscience clause " of the new Vaccination Act. The certificate of conscientious objection which is to exempt the objector from the ordinary penalties for failure to have a child vaccinated is to be given if the obj actor “satisfies two justices or a stipendiary or metropolitan police magistrate in petty sessions that he coriscientiously believes that vaccination would be prejudicial to the health of the child.” One learned magistrate recently suggested the view that he and his brethren in the London courts had no jurisdiction to grant the certificate at all, on the ground that they did not sit “in petty sessions.” Obviously the Act assumes that they do so sit; and even if the assumption were incorrect this would hardly be sufficient to withhold the jurisdiction clearly intended to be given to the London magistrates by Parliament, and so, in effect, to exclude the metropolis from the operation of the Act. But this objection to the jurisdiction, even if it were otherwise well founded, seems to be rsmovsd by the a plication of the Interpretation Act, 1889, s. 13, which dlafines, not, it is true, “ petty sessions,” but “petty sessional court" to include “the Lord Mayor of the City of London and any alderman of that city and any metropolitan or borough police magistrate or other stipendisry maiistrate when sitting at a court house or place at which he is ant orizsd by law to o alone any act authorized to be done by more than one justice of the peace." It cannot seriously be


doubted that a metropolitan police magistrate sitting as a petty sessional court is sitting in petty sessions. The metropolitan magistrates as a body appear to have adopted this view, for at a general meeting held to consider the administration of the new Act they have decided “that they will hear applications under the Vaccination Act.” They go on to say that they “ will not require applicants to be sworn, but if satisfied upon a verbal statement that they have the conscientious objection will give the certificate.” It will be noticed that the Act is silent asto the necessity for the taking of an oath in support of the conscientious objection: the magistrate is to be “satisfied ” ; and it seems clear that the London magistrates are right in holding that sworn evidence is not necessary. They ought, however, as already pointed out (ante, p. 725), to see that the objection is made in the case of the particular child to whom the application relates, and is not a mere general_objection to compulsory vaccination as a system.

THE LETTER from Mr. Gnsnnas O.4_u'ri:i1inLnY which appeared in the Tinws of the 23rd ult. contains a powerful indictment of the system of distress as applied to small tenements. It is curious to note that the statute by which a sale of the goods seized was first authorized (2 Will. & M. c. 5) contains a provision which shows that distress in the case of the houses of small folk was not then within the contemplation of the Legislature. Before a sale can take place notice of the distress must be left “at the chief mansion h"-use or other most notorious place on the premises.” In practice, however, the law of distress is most frequently put in force in cases where it would puzzle the bailiflf to find anything to answer the description of a chief mansion house, and itis put in force with results which shew an enormous disproportion between the benefit to the landlord and the loss to the tenant. “ Furniture," to quote Mr. GaurnEnL1zr’s own words, “when sold under a distress for rent, however fairly the sale may be conducted, realizes very little—in fact, it is scarcely an exaggeration to say that articles which cost pounds are sold for shillings. Speaking from my own experience, I should say that in the majority of instances there is nothing left for the landlord after the expenses of the distress and sale are paid; in others but a very small proportion of the amount due; and in a very few, possibly not more than 10 per cent. of the whole, is there sufficient to pay the rent in full. It is sad to see the disproportion between the great, and too often irreparable, injury done to tenants and the small benefit resulting to landlords under this system.” It is suggested that, in the case of small tenements, the landlord would be sufliciently protected if he could speedily recover possession of the premises in the event of the rent not being paid. At present possession can be recovered either -before justices or in the county court, but in either case there is a delay of several weeks. Mr. Oaurneansv would confer upon the county courts a more summary jurisdiction, and would enable the registrar to make an order for recovery of possession upon a summons returnable in four days. At the same time the power of distress would be either abolished or would be restricted to cases where the rent exceeded a minimum value. This course would avoid much hardship, and would apparently give to the owners of small tenement property a sutficient measure of protection.

We PRINT elsewhere a letter from a correspondent raising an important question as to the form of conveyance of land by the personal representatives of a person dying after the 31st of December, 1897. The err0r—for such it appears to be—into which the draftsman of the form of conveyance to which he refers has fallen is a natural one. Obviously the intention of the Legislature in Part I. of the Land Transfer Act, 1897, was to create a real representative. This is sufficiently shewn by the title prefixed to that part, which runs, “ Establishment of a real representative," and, generally speaking, the intention has been_ carried out, so that, where technical accuracy is not required, it is now correct to speak of the real representative and to say that upon him all the real estate of the deceased devolves. But an examination of the actual provisions of section

1 of the Act shews at once that there is no separate real representative as such, and that the function of holding the real estate

sonal representative. Under sub-section (1) the real estate is to “devolve to and become vested in Lthe deceased’s]_personal representatives or representative from time to time as if it_ were a chattel real vesting in them or him.” Where there is no personal estate, provision is made that probate and letters of administration may be granted in respefit of rpaltestate oplly, but even in this case the executor or a minis ra or mus e looked upon primarily as personal representative. It is in that capacity only that he takes tllile di-eal_l;as;at_:, izpld although in general his position is we escri e _ y e phrase “real representative," yet in strictness he _derives all his power over the real estate from the fact that he is personal representative. It seems to follow fihat wgen, undfir sectilqp *3), he conveys the real estate to the eir or evisee e oug _

convey, as our correspondent suggests, in the character which is technically his proper character; he should convey, that is, as personal representative and not as real representative. The i‘ point, our correspondent observes, has a further ijiiportance in lthat the conveyance “as personal representative lmpO' 1 \. e usual implied covenant agaiustnincumulpianliaes, wheres: agonveyance “ as real representative wo ave no suc e ect. If there were adequate reason for using the term “'real representative,” this difficulty could be got over by introducing an express covenant, but such a course would be opposed to present conveyancing practice, and, until the position of the real representative has been more directly recognized by statute, it will be pater to refpr to himéapfhere technical accuracy is required, s

e persona represen ive.

IN THE annual report of the Board of Trade on Bankruptcy, to which we recently referred, the solicitor to the board, Mr. W. MURTON, calls attention to the case of Re Izod (46 W. R. 304), in which the Court of Appeal (A. L. SMITE and Oonnms, L.JJ., RIGBY, L.J., dies.) held that there was jurisdiction to rescind areceiving order upon a composition being arranged out of court although the public examination of the debtor had not been concluded. The Bankruptcy Act, 1890, s. 3, provides for the liquidation of a debtor’s estate by a composition or scheme of arrrangement, but the approval of the court is necessary, and under sub-section 6 the application for approval is not to be heard until after the conclusion of the public examination of the debtor. It is the contention of the Board of Trade that under this provision, when a receiving order has once been made, the debtor must, unless he pays 20s. in the £, or unless the receiving order ought never to have been made, either be adjudged bankrupt, or a scheme must be approved on the lines indicated in the Act, and that in either case he must undergo a public examination. In Ra Isorl, after the receiving order had been made, an arrangement was made by which the debtor’s father paid all the creditors 10s. in the £, and they withdrew their proofs and released the debtor from their claims. An application was then made for the rescission of the receiving order, and, the oflicial receiver raising no objection, it was granted. But the Board of Trade disapproved of their oflicer’s acquiescence and attempted to get the registrar’s order reversed. The difliculty of their contention, however, lay in the fact that section 3, sub-section 6, of the Act of 1890 only applies where the composition is being carried out under the Act. It is not till the approval of the court is asked for that the question of the conclusion of the public examination of the debtor arises. Apart from this requirement, section 104 of the Act of 1883 can be put into operation, which provides that every court having jurisdiction in bankruptcy may review, rescind, or vary any order made by it. In the present case the Court of Appeal held that the registrar had jurisdiction under this section to rescind the receiving order, and that, inasmuch as the composition was not carried through under the Act of 1890, the provision as to the conclusion of the public examination did not apply. And in the circumstances of the particular case, since there was no delinquency on the debtor’s part, and since the creditors got more under the compromise than they would have


of the deceased is simply an additional duty imposed on the _per

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Two cases of interest have recently been decided relating to the exercise by local authorities of their statutory powers for the alteration of existing streets and the making of new streets within the area of their jurisdiction.

In Southwarlc and Vauxhall Water C0. v. Wamisworth District Boa/rd of Works, which came before the Court of Appeal early last month, the complaint of the plaintiffs was that the defendants (who are the highway authority for their district) were about to lower the level of certain roadways without at the same time lowering the plaintiffs’ water mains and pipes underlying the roadways so as to leave a suflicient covering of soil to protect them from the weight of the traflic and from frost and other sources of injury. No injury had been actually done to the mains and pipes by the defendants’ works. These works were proposed to be carried out under the powers given to the defendants by section 98 of the Metropolis Management Act, 1855, “to cause the ground or soil ” of their streets “to be raised or lowered, and the course of the channels running in, into, or through the same to be turned or altered in such manner as they think proper, and to alter the position of any mains or pipes in or un er such street, such alteration to be made subject to the approval of the engineer of the company to which such mains or pipes belong.” Although several authorities were cited in the argument before Knxawrcn, J., and in the Court of Appeal, the precise question does not seem to have come before the courts in any reported case. In Garldia v. 17w Proprietors of the Bann Reservoir (3 App. Cas. 430), the defendants, acting under statutory powers, had collected a large quantity of water in a reservoir and let it flow down a watercourse to supply the River Bann; the watercourse becoming insuflicient to carry off the water, the plaintifE’s lands were flooded and the defendants were held liable on the ground that it was their duty to keep the watercourse free from obstruction, which they had not done. Again, in T/w Gas Light and Coke 0'0. v. The Visst-ry of St. Mary Abbotta, .Kanain_qton (15 Q. B. D. 1), the defendants in the course of performing their statutory duty of repairing the streets of their parish had used very heavy steam-rollers, which caused repeated fractures to the plaintiffs’ gas-pipes, and in respect of this injury the plaintifis were held entitled to an injunction and damages.

In both of these cases it will be observed that injury had been actually caused to the plaintifls by a negligent or unj ustifiable exercise of the statutory powers of the defendant; as Lord BLACKBURN remarks in the Bann case, “an action does, lie for doing that which the Legislature has authorized if it be done negligently.” In the Wandaworth case KEKEWICH, J ., took the view that the defendants were about to interfere with the rights of the plaintiffs in such a way as would undoubtedly cause damage in the future, and he granted an injunction. His decision presupposed the existence of a right in the plaintiffs to have their ipes protected by a sufficient amount of superincumbent soii); the existence of this right was challenged and was disallowed by the Court of Appeal. Water and gas companies (who have duly taken the benefit of the general Acts relating to their undertakings) have a right to lay their pipes under the soil of streets; but no right to have the soil above them left undisturbed has been given by the Legislature. Section 98 of the Metropolis Management Act, 1855, in empowering the vestries and district boards to alter the position of these pipes when relaying streets, does not require them to do so, and certainly does not require them to alter their position in such A a way as to maintain for them the same amount of protection as they formerly enjoyed. The legal position is thus summed up by Cnrrrr, L.J. : “ As between the road authority and the company I think, that the road authority is paramount; if they foresee danger to their pipes arising


out of the alteration of the level of the street they must’ them‘ selves bear the expense of altering the level of their pipes.” It may, however, be well for the road authority in such a case ta consider whether, having regard to the decision in Gas Light, §'c., 0'0. v. St. Mary Abbotta, it would not be prudent for them to assist in placing the pipes under their streets at a safe level.

The other recent case to which we wish to refer is llfartin v. London County Council, decided by KENNEDY, -T., on the 7th of August. Here the quarrel lay not between two public bodies with statutory powers but between a private individual and a local authority whose action (or inaction) was alleged to be injurious to the plaintiff as a tradesman; this plaintiffs case may therefore excite more sympathy than that of the water company in the case already referred to: it was, however, equally unsuccessful. The county council, in the course of constructing a new street, had stopped up the street in which the plaintiff carried. on his business of a greengrocer and the approaches thereto for a p9I'l0d of about six months; it was alleged that this obstruction was carried to an unreasonable extent and lasted for an unreasonable time, and that the plaintifi’s receipts had 1n consequence fallen off. As the jury disagreed, the actual facts as to the obstruction and the damage to the plaintiff were not ascertained at the trial, but udgment was given for the defendants on the ground that, even if the action of the county council was unreasonable, a loss of custom by the plaintiff was not a direct injury for which he could recover.

Acase in which aplsintitf did recover damages for injury to his business caused by an authorized obstruction to a thoroughfare being continued for an unreasonable time was Wilkes v. lfunyerford Market Co. (2 Bing. N. C. 281); but that case cannot be considered as an authority : see Oaledonian Railway Co. v. Ogilvy (2 Macq. 229), Rickct v. lfctropolitan Railway 00. (L. R. 2 H. L. 175). It was, moreover, inconsistent with previous decisions on the subject, uoh as Hubert v. Groves (1 Esp. 148). The rule as to actions of this kind is clearly stated by Banrr, J., in Banjamin v. Starr (L. R. 9 C. P. 400). The plaintiff, he says, must, in the first place, “ shew a particular injury to himself beyond that which is suffered by the rest of the public. It is not enough for him to shew that he suffers the same inconvenience in the use of the highway as other people do, if the alleged nuisance be the obstruction of a highway.” In that particular case the plaintifi was held entitled to succeed, it having been proved that the defendant’s wagons constantly stood in the road opposite the plaintifi‘s house and obstructed his light and air, and obliged him to use artificial light nearly all day. The distinction between such a case as that and the case of Martin v. London County Council is clear. In the latter case the nuisance, if it existed, was common to the plaintifi and his neighbours, and he was not within the rule stated by BRETT, J.


Sir,—I have before me a printed form of conveyance prepared by some very competent conveyancers and applicable to the case of a person dying after the 31st of December, 1897, intestate, and seized of real estate.

According to the form above referred to the “ real representative ” conveys the property to the heir-at-law in order to vest the legal estate in that person, and in the operative part the vendor is expressed to convey the property “ as real representative of the said X.”

On turning to the Land Transfer Act, 1897, Part I., I can find not a single reference to a “ real representative ” save in the head-note, which, I take it, can hardly be considered part of the Act. On the other hand I find it clearly stated that the person in whom the real estate is to vest is the personal representatives or representative of the deceased.

Itherefore venture to submit that the vendor in the case I have referred to should convey as “ personal representative ” of the intestate.

The point is an important one, as the use of the words “ personal representative ” brings into operation the implied statutory covenants for title. E. S. W.

Aug. 22.

[See observations under “ Current Topics.”-ED. S.J.]~ ‘.\


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This was an action on behalf of the plaintiff Robert Oppenheim (commonly called Baron Oppenheim) for an injunction to restrain the defendant, Mr. James Kenneth Douglas Mackenzie, his servants and agents, until trial or further order from publishing or issuing a circular relating to the affairs of the Guarico Gold Mining Co. (Limited) (in liquidation), containing matters libellous and defamatory to the plaintiff (a copy of which circular had been rent by the defendant to the secretary of the company), and from publishing or issuing any circular, notice, or advertisement to the same purport or effect, or containing statements or representations to the same purport or effect. In support of the motion it was caid that the circular was libellous on the plaintiff, and ought to be restrained upon two grounds: first, that it was a contempt of court; and, secondly, that it was within the decisions which laid down that the court would restrain a libel. It was clearly a libel which could not be justified: Roach v. Hall (2 Atk. 469), Coleman v. Wes! Hartlepool IfaiZwa_1/ Ca. (8 W. R 734), Tickborne v. Jlfoiflyn (L. R. 7 Eq. 55), Daw v. Eley (17 W. R. 245, L R 7 49), Kilcat V. Sha1)2(31 W. R. 227), Re Crown Bank (44 Ch. D. 649, 38 W. R. Dig. 221), Coats v. Chadwick (42 W. R. 328 ; 1894, 1 Ch. 347), and jlfomon v. Tussaud (1894, 1 Q. B. 671, 42 W. R. Dig. 37). So far as the statements in the circular were charges of misfeasance, dishonesty, and fraud the defendant had said nothing in his aflidavits to support them. Upon behalf of the defendant it was said that the defendant intended to justify the statements in the circular.

Pim.1.iuons, J . , in giving judgment, said that no doubt the circular was lihellous in the sense that it was calculated to hold the plaintiff up to hatred and contempt. He had heard the motion at length partly out of deference to the able arguments of counsel by whom he had been addressed, and partly because the case was of some importance. But in his opinion the motion must be refused with costs. No doubt the circular, if published, would be libellous on the plaintiff, and he was bound to hold, having regard to the decisions and dicla set forth in the books, that there were cases in which the publication of a libel would be restrained before the truth or falsity of it had been tried. He agreed most entirely with the language of Lord Esher, M.R., in Ooulson v. Uouiaon (3 Times L. R. 846), cited by Lopes, L J , in delivering judgment in Jllonson v. Tuasaud. Lord Esher said that it was a most delicate jurisdiction which was only to be exercised in the clearest cases where any jury would say that the matter complained of was lihellous, and where, if the jury did not so find, the court would set aside the verdict as unreasonable. Lopes, L.J., added, “ Comment has been made on the words ‘in the clearest cases,’ and it has been asked what those words mean. I think the criticism would be well founded, and they might be complained of as indefinite, if they had not been in my judgment explained in the most exhaustive way by what follows—-viz., ‘ Where any jury would say the matter complained of was libellous, and where, if the jury did not so find, the court would set aside the verdict as unreasonable.’ ” He subscribed to every word contained in those sentences. Lopes, LJ., further said that “ the court must also be satisfied that in all probability the alleged libel was untrue, and, if written on a privileged occasion, that there was malice on the part of the defendant.” In the present case it had been said upon behalf of the defendant that he intended to justify, and there was also the question of privilege. The defendant had an arguable case that the circular was an answer to the f1l1'6Gl'.Ol'B: report and was written in self-defence. One of the occasions upon which a publication was privileged was when the publication took place in self-defence. It was not for him to pick holes in the defendant’s case. At the same time he thought the defendant would be well advised if he abstained from ptiiblishing the circular, because, if he published it, he would in all proba ility be met with actions for libel. He thought, after what had taken place, that if the defendant published the circular it might well be that it would be held that there was malice on his part, and that he might have to pay heavy damages, and he advised him

seriously not to publish it. As to the circular being a contempt of court, upon the notice of motion the question did not strictly arise. But he certainly thought there had been lately a sort of craze in many cases in bringing forward published mutt/er as a contempt of court. No doubt comments might be of such a nature that they might constitute a contempt of court even after the decision in a case had been given. Anything which tended to impede a court of justice was a contempt of court. In the present case the alleged contempt was interfering with the course of justice before the proceedings were completed. In order to constitute such contempt there must be something likely to prejudice a jury, or to deter parties from proceeding with their cases, or to frighten witnesses from coming to give evidence. If any gentleman came before him and said, “ I have a case coming before you, and articles are being written which are likely to infl-ience you in your judgment,” he should ask the gentleman why he paid him so very bad a compliment. If there had been a misfeasance summons taken out, and it had been shewn that there was a probability that this circular might reach some of the witnesses and influence them, the case might be difierent. The cases cited were all distinguishable. Ra Crown Brink came near to the present case, but he hoped the decision of North, J . , iuthat case fell on one side of the line and the present decision on the other. The motion would be dismissed, with costs. Motion dismissed. —Covsssi., Mulligan, Q.C., and Maugham; SOLICITORS, Dixon, Weld, 4- Dirona, for Sewell <3 Maugham ; Godfrey ' B

[Reported by J . E. Atnovs, Barrister-at-Law.]

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Case stated for the opinion of the court by the Commissioners for the General Purposes of the Income Tax Acts for the City of London. At a meeting of the commissioners the Peninsular and Oriental Steam Navigation Co. (the appellant company) appealed against an assessment under Schedule D of £384,230, for the year ending April, 1896, less an amount allowed for diminished value of plant and machinery by reason of wear and tear of £132,622. The appellant company is incorporated by Royal Charter with a registered ofiice in the City of London. The assessment of £384,230 was made on the profits shewn by the company’s accounts upon an average of three years ending the 30th of September, 1894. The appellant company are owners of a fleet of fifty-one steamships trading between England and the colonies and foreign ports. The question for the consideration of the commissioners was whether the company was entitled to any further deduction beyond the sum of £132,622, as representing the diminished value by reason of wear and tear during the year of assessment of the ships of the company. By the 5 8: 6 Vict. c. 3o, s. 100, First Case, r. 3, it is provided: “In estimating the balance of profits and gains chargeable under Schedule D, or for the purpose of assessing the duty thereon, no sum shall be set against or deducted from, or allowed to be set against or deducted from, such profits or_ gains on account of : Any sums expended for repairs of premises occupied for the purpose of such trade, manufacture, adventure, or concern, nor for any sum expended for the supply or repairs or alterations of any implements, utensils, or articles employed for tho purpose of such trade, &c , beyond the sum usually expended for such purposes, according to an average of three years preceding the year in which such assessment shall beymade." By the Customs and Inland Revenue Act, 1878 (41 6: ~12 Vict. c. lo), s._ 12, it is enacted : “ Notwithstanding any provision to the contrary contained in any Act relating to income tax, the commissioners shall in assessing the profits or gains of any trade, manufacture, adventure, or concern in the nature of trade chargeable under Schedule D, or the profits of any concern chargeable by reference to the rules of that schedule, allow such deduction as they ma think just and reasonable, as representing the diminished value by reason of wear and tear during the year o_f any machinery or plant used for the purposes of the concern and belongmg to the person or company by whom the same is carried on.” The appellant company claimed under these provisions to be allowed a deduction of £253,893, on the ground that the same was a just and reasonable allowance as representing the diminished value by reason of wear and tear during the year of assessment of the ships constituting the company’s fleet. It was proved by the company that during a psi-iod of twentyflve years ending in 1894 the average duration of service of ships—as distinguished from the average duration of life-in the appellant company’s fleet was about seventeen years. Evidence produced on the part of the Inland Revenue as regards steamships generally in no case superior to those of the appellants, showed that the registers of shipping for the ports of London and Liverpool, and the Mercantile Navy List proved that the average life of ships of 1,000 tons register and upwards was twentyfive years, and in some cases twenty-seven and twenty-eight years; and the Inland Revenue produced evidence in special cases in support of their contention that twenty-eight years should be taken as the normal life of a steamship. It was admitted by the company and by the respondent that allowance had been duly made in every account yearly submitted for income tax purposes for repairs of all vessels and for all renewals of boilers and gear, as well as for all amendments to the hull of the vessel, exclusive of and in addition to the allowance now claimed for diminished value by reason of wear and tear. On the part of the appellant company it was contended that an allowance for diminished value by reason of wear and tear, at the rate of 5 per cent. on the original cost of their vessels, is a just and reasonable deduction, and that this mode of calculating depreciation to be allowed should be the principle adopted by the commissioners in the case of the appellant company. On the part of the Inland Revenue it was contended that an allowance at the rate of 6 per cent. on the diminished value of the fleet for the year of assessment, arrived at by taking the original cost of each vessel and writing it down year by year at a rate of 6 per cent. on the diminishing value, would fully cover the diminished value by reason of wear and tear during the year, and with regard to the appellant company’s contention that 5 per cent. should be allowed on the first cost of the vessels, it was further contended for the Inland Revenue that the claim could not be considered “ just and reasonable,” for where a vessel's life extended beyond twenty years and the ownership changed, an allowance could not be refused to the owners on the expiration of that period, on the ground that allowances of 5 per cent. for twenty years, covering the whole first cost of the vessel, had already been made to the original owners. It was further contended that the length of service of a vessel in the appellant's employ did not afford a proper basis upon which to determine the allowance for diminished value

y the wear and tear of the ships, nor was the depreciation in ca ital value to be considered, exce t so nu: as it arose from wear and tear. gfhe commissioners on the facts iiecided that twenty-eight years should be considered the duration of life of a passenger steamship in the appellant company s service, and that an allowance of 6 per cent. per annum on the

Sept. 3, 1898. THE SOLICITORS’ JOURNAL. [V0]. 42.] 749


diminishing value would be suflicient to cover diminished value by reason of

wear and tear during the year in question, and that the assessment should stand at £384,230, but that the allowance for such diminished value should be increased from £132,622 to £185,440 The company, being dissatisfied with this determination, now appealed.

Tnn Cocar (Wmcnr and Ksxnsny, JJ.) upheld the determination of the commissioners, dismissed the appeal, and gave judgment for the Crown with costs.

Wnrour, J .—The Act of 1842 applying to these matters provided for a reduction from the taxable amount of profits in respect of the average amount of repairs, renewals, and alterations calculated upon the average of three years. The Act of 1878 provides that the commissioners shall also allow such deduction as they may think just and reasonable as representing the diminished value by reason of wear and tear during the year of any machinery or plant used for the purposes of the concern or belonging to the person or company by whom the same is carried on. I doubt whether the present case raises any question of law at all. All that we have to do is to see that the commissioners have not disregarded any term of the enactments, or any necessary element in the calculation. Mr. Buckley’s first ‘point is that if they had proceeded to make an allowance on a diminishe scale of value from year to year—which I should think they probably have-they were wrong in so doing. But having regard to the language of the sec“ion it appears to me that that is the only way in which they could properly proceed. There must be a diminishing allowance, because, and only because, there is an allowance for the year, and an allowance therefore on a value which diminishes every year. A percentage on the original cost would not fit the language of the section at all, because it might have no direct relation to the actual diminishing of value in a given year, and I do not think that that can have been the meaning of the section. Then, secondly, it is said that as to the valuewhich would be understood as the value to this company, and the diminution of value as a diminution of value to them, that is, a diminution of value calculated in relation to a period of seventeen years’ service, and not a diminution of value calculated upon the probable or average duration of the ship’s lii'e—-it is said that the company ought to get back at the end I of seventeen years the diminution of value I3) them in that time. I do not think that can be the real meaning of this section because it does not say so. It speaks of the value, and not the value to the particular owner. If the value to the particular owner were intended, then, obsolescence of type might have to be considered, and a number of other elements peculiar to the particular owners might have to be considered. It seems so me that it is enough that a period should be taken which experience shews is the term of duration of life for the ordinary purposes of similar companies. Then it is said it is wrong to allow interest, because the money representing the wear and tear must be regarded as expended and not as invested. That seems to me to be wrong. Repairs and renewals have already been allowed for under the Act of 1842 This allowance is not to be supposed to be treated as an allowance to be expended, but as providing a fund for replacing the value of the ship at the end of the term. I do not think we can say the commissioners were wrong, and it is not shewn that they have miscarried on any point of law.

Ksm-zrnv, J .—I agree. It seems to me the Attorney-General is right in saying that substantially what we are asked to review are decisions of [act and not of law. If it be shewn that in fact there has been a misconstruction of the section, that the commissioners have not done or applied their minds to that which the section directed to be assessed, that would be a good ground of appeal; or ii it be clearly shewn that they have included some element which they ought not to have included, or have omitted something which they ought to have included, then that also would be a ground of appeal. On neither ground is there anything here in which we can say that the decision appealed against is wrong. They have dealt with the thing which they were to deal with, and they have stated the various considerations as to how the sum which they had to assess on the diminishing value of the vessel by reason of wear and tear during the year ought to be arrived at, and they have come to a conclusion which—whether from a commercial point they might have come to a different conclusion or not—‘stands, unless it is arrived at on some ground which brings it within the cognizance of this court. I agree that there is no such ground. It is a matter of amount, and clearly a question of fact and not of law.-Connssr., The Attorney-General and. Dancku-crts ; Buckley, Q.C., Asquith, Q.C., and Howard Wright. Somcrroas, The Solicitor of Inland Revenue ; Freakficlds §- Williams.

[Reported by Bir Saaasros Bums, Bart., Barrister-at-Law.l


The annual general meeting of the members of this association was held on Tuesday, the 26th day of July, at their rooms, Kennedy-street, when an account of the receipts and disbursements for the year ending December, 1897 (previously audited by two of the members), was submitted and passed, and the ofliicers and committee were elected for the ensuing year. Mr. R. A. Edgar was elected president, and Mr. H. T. Crofton vice-president. The report of the committee as to the proceedings of the association for the last year was read by the honorary secretary (Mr. John Bury), and unanimously adopted.

Tho following are extracts from the report :

Memhn-s.—The association now consists of 256 members. Since the last annual meeting seven new members have been elected and three have


resigned .

Manchuter District Registry (High Court).--The committee have been in communication with the Lord Chancellor with the view of obtaining more adequate accommodation for the oflices of the registry. The committee endeavoured to arrange for the ofllces to be transferred to the first floor of the building at present occupied by the registry, but an intimation has been received that a site for the new otiices has been selected by the Government, near the present Inland Revenue oflices in Deausgate.

County Court Rrllrs, 1897.—-The committee have considered these rules and orders and are of opinion that, with the exception of order 5, they do not call for any observation. They consider that the effect of order 5, which requires an application for leave to enter a plaint under section T4 of the County Courts Act, 1888, to be supported by affidavit, will be mischievous, as tending to impede the collection of trade debts and to encourage vexatious defences. If any additional revisions for the protection of defendants not resident or carrying on gmsiness within the jurisdiction of the court within which they are sued are necessary, ample provision is made by order ord. 12, rr. 6 and 7, 1897. The committee are of opinion that the existing procedure sufliciently provides for change of venue, and that further interference with the right of a plaintiff to select the place of trial is undesirable. '

Conveyancing Bill.-—The committee have considered this Bill and find that with certain modifications and additions it is substantially the Bill iniroducrd in 1897. which was a revised and improved draft of Mr. \Volstenholme’s Bill of 1895 which was before the committee in November of that year. The Bill has been dropped and the committee have taken no further action upon it, but consider that some of the amendments proposed to be effected by the Bill would be beneficial and might well form the subject of a separate Bill apart from Mr. \Volstenholme’s scheme. The amendments referred to include (1) power for a married woman trustee to dispose or join in disposing of real or personal trust property as if she were a femc sole; ('2) to provide that the persons appointed trustees for the purposes of the Settled Land Acts of the original or principal settlement shall be the trustees for the purposes of those Acts of any “compound” settlement for the time being comprising such original settlement; (3) to givea married woman, restrained from anticipation, the powers of a tenant for life ; and (4) to explain and amend section 19 of the Married Women‘:-1 Property Act, 1882. _

Stamps on conveyances comprising chiqf rcnts.—This subject has again received the careful attention of the committee, who have approved of the clause drafted by Mr. Danckwerts on the instructions of the Incorporated Law Society, U.K. The Incorporated Law Society are endeavouring to get the clause inserted in some Government finance Bill and passed with that measure, but they have not yet attained their object.

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