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on terms favourable to Lord Bateman. Subsequently, however, Lady THE PUBLICATION OF ACTS OF PARLIAMENT.

Bateman discovered, as she alleged, tta', her income from the Kerrison [To the Editor of the Solicitors' Journal.]

estates did not amount to £8,000 a year, inasmuch as she took subject to

numerous prior encumbrances, so that the deed of 1890 was executed Sir,- In the early part of this year I obtained, on behalf of a

under a wrong state of facts, and was therefore inoperative to affect the local authority, a provisional order under the Electric Lighting Acts. interest secured to her by the deed of 1867. Accordingly, she brought This order was duly confirmed by Parliament some time last session. this action against the executor of the mortgagee, Mr. Montagu, who had

In order to complete my papers, I have been anxious to obtain a died, the persons to whom Lord Bateman had conveyed his life estate in print of the Act by which the order was confirmed, but although I the Kelmarsh and Shobdon estates subject to the mortgage, and Lord have made repeated enquiries of Messrs. Eyre & Spottiswoode and Bateman himself, claiming a declaration that she, the plaintiff, had not at have arranged with them to send me a print as soon as ready, I have any time since the execution of the deed of 1867 succeeded to an income in not yet obtained it.

her own right of £8,000 or more per annum for her separate use within I do not even know the date on which the Act became law, and it the meaning of the proviso; and also a declaration that the admission by is only by reference to the index to the Law Reports that I have been of the income to which, under the deed of 1867, she became entitled for

the plaintiff in the deed-poll of 1890 was not binding upon her in respect able to get at the title and reference to the Act. I cannot conceive why there should be four or five months' delay in the deed-poll, she had always been and still was entitled to that income.

her separate use without power of anticipation, and that, notwithstanding printing these Acts, and I think public attention should be called to Keke wich, J., held that, by reason of the restraint on anticipation, Lady t e maiter.

W. H. W.

Bat man could not bind her interest by the admission, and that her right London, Dec. 1.

t receive the in ome continued not withstanding the deed-poll, The defendant Faber appealed.


dismissed the appeal. NEW ORDERS, &c.

LINDLEY, M.R. -Tbe case is now and important to lawyers as well as

socially; but the conclusion at which I have arrived is that it is impossible LAND TRANSFER ACT, 1897.

to reverse the decision of Kekewich, J., unless we are prepared to make Privy Council Office, Whitehall, November 26, 1897.

law a proposition which I do not believe is law. If we reverse the decision Notice is hereby given that the following Draft Order has been restraint upon anticipation by telling an untruth, on which another

we must say that it is possible for a married woman to get rid of a prepared in pursuance of section twenty of "The Land Transfer Act, person has acted. I agree that it is a question of fact; but what is the 1897," and that the existing Land Registry in Lincoln’s-inn-fields is evidence before the court? We have a deed in which the plaintiff states intended to be the place for the Registry under the Act, together that she has succeeded to an income in her own right of more than £8,000 with such other places as may be thought proper, having regard to

& year

The first question is whether that deed is admissible in evidence. the convenience of the districts to be affected by the Order :

I think it is, and that it is an admission that she did so succeed. Then

she says: “I made a mistake, and claim relief on the ground of mistake." DRAFT.

The answer is : “You are not entitled to take advantage of that circumAt the Court at the day of

stance because Mr. Montagu has changed his position in reliance on your


statement, and therefore you are estopped from denying its truth." The Queen's Most Excellent Majesty in Council.

regards anyone except a married woman restrained from anticipation, that Parsuant to the twentieth section of " The Land Transfer Act, by telling an untruth to deprive herself of the protection which the court

would be a good answer ; but if that be so as regards her, you enable her 1897,” Her Majesty, by and with the advice of Her Most Honourable desires to afford her. In my opinion that cannot be done. The authoriPrivy Council, is pleased to order and declare, and it is hereby ties shew that a married woman cannot, even by her own fraud, deprive ordered and delared as follows:

herself of this protection. The policy of the law I say nothing about, but As respects the County of London, on and after the first day of it has been canctioned by Parliament in the Married Women's Property July, one thousand eight hundred and ninety-eight, Registration of Act. The result is that a married woman can play fast and loose to an Tile to land is to be compulsory on sale.

extent to which vo other person can.-Counsel, Sir E. Clarke, Q.C., RenThis Order may be amended or added to or repealed by Order in shaw, Q.C., and Brabant ; 'Warrington, QC., and Beaumont. Solicitors, Council.

Greenfield & Cracknall; Munns & Longden.

(Reported by J. I. STIRLING, Barrister-at-Law.]


High Court—Chancery Division.
Court of Appeal.

Re HUGHES. BRANDON v. HUGHES. Keke wich. J. 18th Nov.
BATEMAN (LADY) V. FABER. No. 2. 29th Nov.


21 AND 26. This was an appeal against a decision of Kekewich, J. The facts were The facts of this case were as follows: In February, 1880, Mrs. Walker as follow: By an indenturo dated the 26th of June, 1867, Lord Bateman obtained a protection order against her husbind under section 21 of the mortgaged his life interest in the Kelmarsh and Shobdon Court estates to the Divorce and Matrimonial Causes Act, 1857. This order was never disexecutors of Lady Kerrison's will to secure a sum of £11,430, representing charged. By an indenture dated the 6th of March, 1880, Mrs. Walker trust funds under the will advanced to Lord Bateman ; and, subject to covenanted to pay Mr. J. C. Stogdon on a certain date the sum of £450 trusts for repaying the loan, the executors were to pay the surplus rents and any other sums due from her on the footing of the security therein and profits of the estates to "Lady Bateman, the wite of Lord Bateman, contained. The money was not paid. Mrs. Walker died on the 24th of during her life for her separate use without power of anticipation, “Pro- March, 1896, having by her will exercised a general power of appointment vided, nevertheless, that if at any time the said Lady Bateman shall over certain funds. The funds so appointed constituted all Mrs. Walker's succeed to an income in her own right of £8,000 or more per annum for property at her death. This was a summons by Stogdon's assignee, in an her separate use, then and in such case the trusts in and by this indenture action for the administration of Mrs. Walker's estate, asking that his lastig hereiobefore declared shall absolutely cease and determine, and claim to prove as a creditor for the moneys due under the indenture of after the determination of the trust lastly hereinbefore declared (but sub- the 6th of March, 1880, might be allowed. ject and without prejudice to the trusts herein before declared) upon trust Kecewich, J., in giving judgment, said: It seems to me that I for the said Lord Bateman.” Lord Bateman subsequently mortgaged cannot reject this claim without saying that the Act of 1857 does not such interest as remained to him to Mr. Andrew Montagu as a collateral mean what it says. Section 21 of the Act says that if any such order security for £110,000. In July, 1886, Lady Bateman became entitled to for protection as is contemplated by that section be made, "the wife shall a life interest in the Kerrison Estates in Norfolk, Suffolk, and Middlesex, during the continuance thereof be and be deemed to have been, during and a question was soon afterwards raised by Mr. Montagu whether or such desertion of her, in the like position in all respects, with regard to not the plaintiff had “succeeded to an income in her own right of property and contracts, and suing and being sued, as she would be under £8,000 or more per annum for her separate use," so as to bring into this Act if she obtained a decree of judicial separation"; and section 26 operation the above-mertoined proviso. Lady Bateman was ultimately says that, “ in every case of a judicial separation the wife shall, whilst so advised by her then solicitor (who had since died) that now she was separated, be considered as a feme sole for the purposes of contract, and tenaut for life of the Kerrison Estates she must be considered as wrongs and injuries, and suing and being sued in any civil proceeding.” having succeeded to an income of £8,000 within the

It has been argued in opposition to this claim that we are now dealing ing of the proviso. On the 4th of March, 1890, Lady with the property of the wife and not with her contract, and the case of Bateman, relying on this advice and being desirous of enabling Hill v. Cooper (41 W.R. 500; 1893, 2 Q. B. 85) was relied on in support her husband to obtain better terms from the mortgagee, Mr. of that argument. That case, however, decided that a married woman Montagu, executed a deed - poll whereby she expressly admitted who has obtained a protection order is still a married woman, and that a that her life interest in the Kelmarsh and Shobdon Court estates had restraint upon anticipation still remains attached to property which was d' termined under the proviso and released that life interest in favour of hers before the order. It was a case under section 25 of the Act, and does Lord Bateman. In consequence of and subsequently to the deed-poll, Mr. not deal with the question now before me, for I am dealing with a question Montagu entered into agreements with Lord Bateman whereby the rate of of contract and not with a question of property. Sections 21 and 26 read Interest on the £110,000 loan was reduced, and payment was arranged for | together say that a married woman shall be considered as # feme sole for


the purposes of contract, and therefore I think she can enter into a to the life interest of her mother, she was entitled to certain property concontract freed from those restrictions wbich are imposed upon married tained in her parents' marriage settlement free from the trusts of a women for their own protection. Mrs. Walker did enter into such a voluntary settlement, which she had executed when an infant shortly contract with Mr. Stogdon. The case of Re Ann (1894, 1 Ch. 549), after her marriage. She married at the age of sixteen on the 28th of which was referred to in argument, is a case upon a different statute January, 1892. The voluntary settlement was dated the 27th of July, and does not apply. Relying, therefore, simply upon the 21st and 26th 1892. At that date the plaintiff had no property in poseession, but she sections of the Act, I decide that Mr. Stogdon's assignee can prove for had a vested interest liable to be divested by the exercise of her mother's his debt.-Counsel, Warrington, Q.C., and Dauney; Tanner. SOLICITORS, power of appointment and subject to her mother's life interest in certain J. C. Stegdon ; G. S. f H. Brandon.

property comprised in her parents' marriage settlement dated the 15th of [Reported by R. J. A. Morrison, Barrister-at-Law.]

April, 1874 ; and she was also entitled, under the will of her father, to

other property in fee in reversion expectant on the death of her mother. Re SMYTH, LEACH 1. LEACH. Romer, J. 27th Nov.

The action was with regard to the former-the settlement property. INLAND REVENUE-PROBATE Duty-Proceeds of PLANTATION IN JAMAICA The voluntary settlement in question contained recitals to the effect that ENGLISH TESTATOR-LIABILITY TO PROBATE DUTY OF THE ESTATE OF

the plaintiff, therein referred to as the settlor, was entitled to certain ENGLISH LEGATEE.

property under her parents' marriage settlement, no mention was made

of the overriding power of appointment possessed by her mother, and the This was a petition for the distribution of funds subject to the trusts of settlor assigned and conveyed to the trustees all her reversionary interest the will dated May, 1837, of Francis G. Smyth, who died in June, 1839. in the property subject to the said settlement and under the father's will. A question arose as to the payment of probate duty in respect of a sbare In one operative part reference to the property, was made in the words; bequeathed to an English legatee of the proceeds of sale of a West Indian

“to which she is entitled under the principal indenture of settlement," plantation which was devised, after the expiration or failure of certain the parents' marriage settlement being thereby meant. On the 5th of prior interests, in trust for sale and division of the proceeds. The legatee August, 1897, the plaintiff's mother exercised her power of appointment died before the expiration of prior interests for life, and the question was whether his share ought to be regarded as

by a deed-poll, whereby she appointed all the property subject to the

an English or a foreign marriage settlement of 1874 to the plaintiff absolutely subject to her own asset.

life interest, and on this it was contended on behalf of the plaintiff that ROMER, J.—The question as to probate duty which arises in this case

she was entitled to the property in reversion absolutely free from the may be shortly stated as follows: A testator, who at the dates of his will trusts of the voluntary settlement, on the ground that she took an overand death was living and domiciled in England, made an English will riding title by the exercise of the power of appointment in her favour. whereby, in effect, he devised and bequeathed a plantation in Jamaica to Against this it was contended that she was estopped from setting up any trustees upon trusts for the benefit of certain persons for life and their other title to that which the voluntary settlement represented her as issue, and upon the deaths of those persons and failure of issue upon trust having, and which she had thereby settled the property. Reference to sell the plantation and divide the proceeds amongst eeveral persons particularly was made to the cases of Heath v. Crealock (23-W. R. 95, therein named. The trustees were at the above dates domiciled in the 10 Ch. 22) and Sweetapple v. Horlock (27 W. R. 865, 11 Ch. D. 745). United Kingdom, and one of them after the testator's death proved the

ROMER, J., caid he bad come to the conclusion that the plaintiff was will in England and acted as trustee, and as trustee in this country held entitled to the relief she prayed for. The cases had established that if the plantation upon the trusts of the will. The trust for sale ultimately took effect, and the proceeds of sale of the plantation became divisible he was entitled in default of appointment, and afterwards obtained a title

a person assigned his interest in property, either real or personal, to which amongst the several persons named in that hebalf in the will or their legal to this property by virtue of an exercise of the power of appointment, he personal representatives. One of those persons (I will call him the could claim to have the property without being subject to the settlement, legatee), who was at the tíme of his death living and domiciled in the reason being that the interest he obtained by the exercise of the power England, died while the persons entitled for life were in existence, and the was distinct from what he had in default of such exercise. In the case question is whether probate duty is not payable here on his death in before him the deed of settlement was by an infant. Primâ facie it would respect of his interest under the will. Now that interest was admittedly only pass the interest that she then had and not what she might afterof the nature of personalty, and the question, therefore, narrows itself wards acquire. The words of the settlement were consistent with this, down to this, Is the interest to be considered an English-asset or to be and, treating the matter as a question of construction, his lordship did not treated as foreign because the plantation was situate in Jamaica ? In my think that he ought to construe the deed as intended to pass what the opinion it is to be regarded as an English asset. The case is governed by, plaintiff might in the future possibly acquire. In the settlement there was the principles which led to the decision of the Attorney-General y, Lord no reference to the power of appointment, and there was no covenant or Sudeley (44 W. R. 340; 1896, 1 Q. B. 354), and the judgment of Lopes, any words to bind the mother not to exercise the power of appointment. LJ., as reported in the L. R., 1896, 1 Q. B., at p. 363, applies almost word The main contention of the trustees was based on the recitals in the deed for word to the case before me, and that judgment was approved of and adopted by the Lords in the House of Lords when it came for considera-, that so far as they went they were accurate, inasmuch as matters then stood,

as to the plaintiff's title, but, on looking at these recitals, it would be seen tion before them on appeal : Sub. nom., Sudeley, Lord, v. Attorney-General the plaintiff, the settlor, was entitled to the property subject to the mother's (45 W. R. 305; 1897, A. C. 11). At the time of his death the only right life interest, although the recital was incomplete, inasmuch as it did not the legatee had in the case before me was to bave the trusts of the will state that her interest was liable to be defeated by the exercise of the power duly performed, and in particular to have the trust for sale carried into by the mother. But giving the recitals a reasonable construction, and effect at the due time, and the net proceeds of the sale, after paying costs making them if possible accord with facts, they should be treated as a and the expenses of the trustee, divided between the legatee and the statement of what the settlor's interest then was, and, in his lordship's other persons entitled. As matters stood he was not entitled to the planta- opinion, the settlement was only intended to pass such interest as she tion iteelf or to any specific part or sbare of it. The trustee was not a then had, not what she might afterwards acquire. It was not a case of trustee of the plantation or of any specific part or share of it for him; all estoppel. The doctrine of equitable estoppel could not be applied in he was entitled to was bis proportion of the net proceeds of the planta- favour of a volunteer, nor was there any estoppel raised by the words tion after realization. He had no claim against the plantation to recover used to convey the property; it was an innocent conveyance; nor on the The right of the legatee as against the trustee was only to have the trusts ground of misrepresentation, as the recitals, so far as they went,

were accurate, and on these grounds his lordsbip declared that the of the will administered... Administered where? The testator was domi- plaintiff was entitled to have the property free from the settlement.ciled in England, his will was proved in England, his trustee was in Counsel, Neville, Q.O., and Leigh Clare ; Levett, Q.C., and Dickinson ; England, and the money recoverable would in the ordinary and proper J. Ashton Cross.' SOLICITORS, Cridland of Nell; Janson, Cobb, f. Pearson ; course be brought to England. The trustee could be properly and in the Godfrey & Robertson. ordinary course sued in the English court by the legatee, who was in England. The asset was an English equitable chose in action, recoverable

[Reported by Ralegu B. PAILLPOTTS, Barrister-at-Law. in England, and an English and not a foreign asset, and as such subject to probate duty here. It was suggested as against the Crown that possibly under come circumstances an action might have been brought by the High Court-Queen's Bench Division. legatee to enforce his rights in Jamaica. I am bound to say that at present I do not see what action could have been properly brought there.

Re AN ARBITRATION BETWEEN THE LONDON COUNTY COUNCIL But even admitting that, under some conceivable circumstances or chavge AND THE CITY OF LONDON BREWERY CO. Div. Court. 11th and of circumstances, some action might have been brought there, the question

26th Nov. is not in what place under extraordinary circumstances an action might be LONDON COUNCIL Council - New Street-IMPROVEMENT CHARGES-VALUAbrought, but what place under existing circumstances was the natural and TION-Tied LICENSED PREMISES - EVIDENCE OF TAKINGS AND PAYMENTS proper place in which the legatee should enforce his rights ? In other

-VALUE OF THE TYING COVENANT " TRADE INTEREST - LONDON words, what was the proper forum for deciding upon the legatee's claim ? COUNTY COUNCIL (Tower BRIDGE SOUTHERN APPROACH) Act, 1895 and the answer to this clearly is that the forum was English. And in (58 & 59 VICT. C. cxxx.). reference to this view I may refer to the case of Re Cigala's Trusts (26 W. R. 257, 7 Ch. D. 351) and the observations of Jeesel, M.R., in that

In this case, stated to be the first on what is commonly known as the I therefore decide that the probate duty is payable.- Counsel, betterment question, there was an award by the arbitrator appointed by Neville, Q.C., and R. J. Parker ; Vaughan Hawkins. SOLICITORS, Norris, the Local Government Bcard to make an initial valuation, under the Allens, $ Chapman ; Solicitor of Inland Revenue.

London County Council (Tower Bridge Southern Approach) Act, 1895, in [Reported by J. F. WALEY, Barrister-at-Law.!

respect of certain "tied” licensed premises. This award was, by an

order of the court, made in the form of a special case for the opinion of LOVETT v. LOVETT. Romer, J. 24th and 25th Nov.

the Queen's Bench Division. By the above Act the London County

Council was authorized to make a new street on the south side of the VOLUNTARY SETTLEMENT-CONSTRUCTION-ESTOPPEL.

River Thames as an approach to the Tower Bridge, and for that purpose Acţion. In this action the plaintiff asked for a declaration that, subject to take certain lands compulsorily. By section 36 property contiguous to


the proposed new street is styled "the improvement area," and it is pro- apportioned between the council and the lessees, just as if the council had vided that the lands included in such area are liable to have an improve- | always been the owner and as if the existing leases had been held from ment charge placed upon them in respeet of any substantial and per- them. In the case of the “Raven" and "Sun" similar questions arise with manent increase in value which it is clearly shewn has been derived from this exception--that the premises are under lease for an unexpired term i the improvement.” For arriving at the improvement charge a valuation exceeding 21 years without any “tying" covenant. If the owner gets a : is to be made of the property before the improvement is made. This is rent different from the rent which he could get if the house were tied, called the “initial valuation." The valuer is to separately value the and if that difference fairly represents the value to the lessee of his freeinterest of the owner of the site and buildings, and the interest of any dom from such a covenant, then the existence or non-existence of such a lessee thereof for twenty-one years unexpired, excluding from each such covenant would seem to be immaterial, otherwise the value of the interest. valuation

any trade interest." After the improvement is completed an of the one or the other party would be increased or diminished as the case assessment is to be made by the London County Council of the amount may be. The valuation will therefore stand as a valuation according to which the council alleges is the enhanced market value derived by the the last tables in each case.-Counsel, Bosanquet, Q C., and Cababé ; property from its improvement. Subject to the right of the parties inter- Hon. A. Lyttelton. SOLICITORS, Western & Sons ; W. Blaxlani. e ested to object to assessment, and have the same decided by arbitration, (a) the property is to have a charge equal to 3 per cent. per annum

(Reported by E. G. Srillwell, Barrister-at-Law.] on half the enhanced market value, or ) the owner inay require the county

REG. v. WILLIAM JONES. C. C. R. 27th Nov. council to purchase the property at the amount of the initial valuation. In the present case the brewery company are the freeholders of a

CRIMINAL LAW-False PRETENCES-OBTAINING FOOD AT A RESTAURANTpublic-house called the “Old Rose." This is situated within the above

OBTAINING CREDIT-CONDUCT AMOUNTING TO False PRETENCE. mentioned "improvement area," and is subject to a lease, of which less Case stated by the Recorder of Worcester. The prisoner was indicted than twenty-one years was unexpired, granted by the company to one at the Michaelmas quarter sessions for having falsely pretended to ono W. Clergents, which lease reserves, besides an annual rental, the right to Julia Crump that he was then able to pay her for a plate of cold meat and exclusive supply of the malt liquors consumed in the house. When the a pint of sherry, which he then ordered, and that he then had and arbitrator was making the initial valuation,” the question arose as to possessed sufficient money to pay for them, by means of which false prethe meaning of the words “excluding from each such valuation any trade tence he did then unlawfully obtain from Julia Crump certain victuals, interest” in section 36 of the Act, and whether therefore the value of the whereas in truth and in fact he did not then have or possess sufficient covenant tying the licensed premises was to be taken into account. The money to pay. There was also a count for obtaining credit by fraud. It questions for the opinion of the court were: (1) Whether, according to was proved that the prisoner came to a restaurant kept by Julia Crump's the true construction of the said Act, evidence of the takings and pay- husband and asked what they had ready, and on being informed that they iments of the public-houses, 42 and 44, Tanner-street, was admissible; had some cold lamb, said he would have that and half-a-pint of sherry, (2) Whether (the "Old Rosé," being let on a lease whereof nineteen years He then went to the dining-room and was supplied with and consumed are unexpired at a rental of £100 per annum, subject to the ordinary the victuals in question. He asked for his bill, which was given to him, covenant tying the purchase of malt liquors to the lessors) in arriving at and amounted to four shillings. He then said he had no money except the value to the lessor's interest, the value such covenant is to be one halfpenny, but was expecting some goods soon. He was then given excluded. The arbitrator then stated alternative findings of the figures into custody, and on his being searched one halfpenny only was found on according to the result of the judgment of the court. There was, besides him. Mrs. Crump, stated that generally customers paid immediately the case of the “Old Rose,' that of another public-house noť a tied after they had finished their meal, and that she would not have supplied house. This was dealt with in the judgment in the court.

the prisoner with the wine and food if she had known he was not able to THE COURT (Wright and Kennedy, JJ.) took time to consider their pay for it, though customers who were known were sometimes allowed to judgment.

pay afterwards. In cross-examination she stated that the prisoner was On the 26th of November the written judgment of the court was

shabbily dressed and that she served him the same as any other customer, delivered by Wright, J. After stating the facts of the case and referring and made no inquiries about him, as she sometimes did. She also stated rto the sections of the Act bearing upon the case, the learned judge said :

that if an intending customer looked as if he were unable to pay she The questions for decision in the present case arise in relation solely to would make some inquiries about him before supplying food. The the initial valuation" of the properties. In the present case of the recorder directed the jury that before they could convict the prisoner "Old Rose" there is not a lease for twenty-one years, but there is a they must be satisfied (1) that he intended to represent that he was of shorter lease with the common " tying" covenant. In 'valuing the site present ability to pay ; (2) that he was aware of his want of ability to pay; apart from the buildings on it thở valuer has, with the assent of the (3) that the food was supplied in consequence of the false pretence; (4) county council, taken into consideration the fact that the premises are

and that there was an intention to defraud. The jury found the prisoner licensed as a public-house. On that basis he has made alternative guilty on both counts, and he was sentenced On the argument of the valuations of the site, dependent on the two questions whether the takings case, on the 13th of November, it was contended on behalf of the prisoner and payments of the public-house and the fact that it is tied are elements that his conduct merely amounted to a promise to pay, and was not of the value of the site or of the site and buildings. It seems to us

sufficient to support an indictment for obtaining the food by false preplain that neither of them can be considered in valuing the site tences, and as to the second count, that credit was not in fact obtained. apart from any existing buildings "thereon.” In the next part of the

Rex. v. Goodhall (R. & R. 461), Reg. v. Burrows (11 Cox C.C. 258), Rex. V. valuation--namely, that of the site and buildings "as a whole”--the Barnard (7.C. & P. 784), Reg. v. Cooper (2 Q. B. D. 510), Reg. v. Peters (16 same two questions arise. As regards the takiugs and payments, we think Q. B. D. 636), Reg. v. Gordon (23.Q. B. D. 354), Reg. v. Hazelton (L. R. 2 that they cannot be treated as elements of value of the land and building C. c. R. 134), Reg. v. Slowly (12 Cox C. C. 269), and other cases were -i.e., as in themselves evidence of value-and that evidence of them

cited. should not be admitted even for the purpose of testing the evidence of

The judgment of the Court (Lord Russell or Killowen, C.J., and witnesses. In Dobbs v. Assessment Committee of South Shields (43 W. R. Wright, KENNEDY, DARLING, and Channell, JJ.) was delivered by. 532 ; 1895, 2 Q. B. 133) it was so held with reference to questions of Lord RUSSELL OF KILLOWEN, C.J., who said the question was whether rating, and we think that the principle of that decision, although partly the conviction could be supported in respect of one or both counts, the ibased on practice, is applicable to the present case. As regards the jury having convicted the prisoner on both, and a concurrent sentence "" tying" covenant, we think that the valuation of the site and buildings having been inflicted. The question, in other words, amounted to this, : must in effect be the same as it that covenant were considered. The real Was there any evidence on which the jury ought to have been asked to question is, Wbat is the market value of the premises fit for a public-house, convict? What the prisoner did was to go into the restaurant and order considered apart from any particular distribution of the interests in it food and eat it and not pay. No question was asked him as to his ability i.e., considered as an unqualified freehold? The property must be valued to pay. No statement was made by him as to whether he had means or as that of a person who is in all respects a beneficial owner. The fact that not. Could that be regarded as justifying the jury in finding that he had the house is tied has not increased its value, but only amounts to this, obtained these goods by false pretences ? The court thought not. At the that the owner has not parted with that part of its value which consists of same time they did not mean to the least doubt on the cases deciding the power to tie. The value of the premises is practically the same either that conduct without words could amount to a false pretence, as in the way. The enhancement of the value of the premises which will result case where a man at Oxford put on a cap and gown in order to make a from the improvement will be the same, whether the premises are tied or pretence that he was a member of the university, In this case, however, not, though the benefit of it may be differently apportioned between the prisoner had only ordered and consumed this lunch, and had done lessor and lessee; and the charge is intended to be proportioned to the nothing else. It was not proper to leave such a case as that to the jury; total enhancement of value. The third part of the valuation appears to on a charge of false pretences, as there was no evidence on which they could be introduced for the purposes of sub-section (9), and although it seems convict the prisoner in such circumstances of false pretences. By section prima facie to be required only when there is a lessee for at least 21 years, 88 of 24 & 25 Vict. c 96, it was provided that on a charge of obtaining yet in order to give full effect to sub-section (9) it seems necessary to con- goods by false pretences, if it were proved that the goods were obtained strue the provision for this third part of the valuation as requiring in in such a manner as to amount at law to larceny, the person charged every case a valuation of the owner's interest. Then it only remains to could still be found guilty of the misdemeanour. In this case, however, the determine whether in the present case the fact that the house is "tied” prisoner could not be convicted under that section, as he had not comought to be considered in this third part of the valuation. We think that mitted larceny. For it was perfect!y clear that the prosecutor had volun. it ought, in the same manner as in the valuation of the site and buildings, tarily parted with the property in and possession of the food, a fact though not for the same reasons. This part of the valuation is a valuation wbich prevented the offence from being larceny, as larceny consisted in not of the site and buildings, but of the owner's interest in them, and the taking away goods against the will of the owner. The court were anything, not being a trade interest, ought to be considered which affects therefore of opinion that the verdict of the jury on the first count could the quantum of that interest. The effect will be that if the owner requires not be supported. The second count was framed under a different statute the council under sub-section (9) to take his interest, and they do not namely, section 13 of the Debtors Act, 1869 (32 & 33 Vict. c. 62), which abandon the charge on bis property, they will have to pay him the value provided that a person should be guilty of a misdemeanour and liable to of his actual interest in the premises, and the charge will continue and be imprisonment for one year "if in incurring any debt or liability he has


obtained credit under false pretences, or by means of any other fraud." | whether a seaman was "employed or engaged"; and also whether, as the There was therefore three elements in this offence-first, the incurring Act had the words “ on board any ship," a seaman would be liable if he a debt or liability ; second, obtaining credit; and third, fraud. The committed the illegal act on shore. Those objections had no real conjunction of these three was essential to the offence. _The prisoner in foundation, as the employment or engagement must be determined as a this case bad obviously incurred a debt or liability. Had he obtained question of fact in each case, and a seaman might well be held to be credit? In the opinion of the court he did. The prosecutor might have employed or engaged on board ship, although at the particular point of time said that he would not furnish the goods unless the money was first paid he might have been sent on shore on duties connected with the ship. over, but he did not say so. He relied on the ability of the prisoner to The prisoners here followed the sea as a calling"; it was not shewn pay, and gave credit. In the opinion of the court the length of the period when they were last employed on board a ship. It was consistent with this of credit was not material; at any rate, the prosecutor parted absolutely that they had been out of employment for months and had no immediate with the goods without prepayment. Was there, then, fraud ? The jury prospect of a future engagement. It would be strange if such persons had found that there was, and thera was ample evidence to justify them were excluded from the legislation of 1875 as well as the Merchant Shipin so finding. The man went into the eating-house, in which the ping Acts. On the whole, therefore, it appeared that at the date of the ordinary custom was that people should pay immediately on the consump- passing of the Act of 1875 the Legislature had already defined in a statute tion of the food. He must be taken to have known this custom, and that what is meant by seamen—that the explanation of their exclusion from it would be observed with regard to him. The jury found that he had no the later Act must be sought in the fact that they were already the intention of paying. The conviction therefore on the second count and subject of special enactments giving another remedy for some of the the centence following thereon must be affirmed.-COUNSEL, R. Harington; matters included in the later statute; and that no ground of reason or J. B. Matthews. SOLICITORS, John Stallard, Worcester; Arrowsmith, common sense could be found for excluding from the operation of the Act Maund, f. Coombs, Worcester.

in question the whole class of seafaring men not actually engaged in sea [Reported by T. R. C. Dill, Barrister-at-Law.]

service. Under the circumstances, the court was of opinion that the view taken by the learned judge at the trial was correct, and the conviction

must be afirmed. Conviction afirmed.-COUNSEL, J. D. Crawford ; B. F. REG. v. LYNCH. C. C, R. 27th Nov.


[Reported by T. R. C. Dill, Barrister-at-Law.] c. 86), ss. 7, 16.

Case stated by Ridley, J. The prisoners were indicted at the Glamorgan July assizes under section 7 of the Conspiracy and Protection of Property Act, 1875, for having, with a view to compel one William Eton

Bankruptcy Cases. to abstain from doing an act which he had a legal right to do-viz., from Re HUMPHREYS, Ex parte ROBERTS. Wright and Kennedy, JJ. 11th performing a contract to serve as a seaman on board a certain ship

and 26th Nov. intimidated him, and watched and beset the place where he was, and BANKRUPTCY-Costs—CHARGING ORDER—Money RECOVERED OR PRESERVED followed him with others in a disorderly manner. It was proved that Eton had signed articles on board a steamship lying in Penarth Dock, and

IN THE Proceedings—JURISDICTION -SOLICITORS Act, 1860 (23 & 24 Vict. that when he came ashore the prisoners and a number of other persons

c. 127), s. 28-BANKRUPTCY Rules, 1886, R. 125. surrounded him and intimidated and assaulted him, following him for This was an appeal from his Honour Judge David Lewis, sitting at about three hundred yards. The prisoners followed the sea as a calling, Carnarvon, who had granted the solicitors to the trustee in the bankruptcy each of them having been engaged as a fireman on board steamships, but a charging order for costs on certain money alleged to have been recovered on the day in question neither of them was evgaged or employed as a or preserved by them in the bankruptcy proceedings. The bankrupt in fireman or seaman on board ship; it did not appear when either of them this case had absconded to Australia, and was arrested by the police at had last been so employed. It was contended on their behalf that they Adelaide, who found upon him about £800, of which they took possession. could not be convicted because section 16 of the Conspiracy and Protection The trustee instructed the solicitor retained by him, with the consent of of Property Act, 1875, provides that “nothing in this Act shall apply to the committee of inspection, to claim this money.

The solicitor wrote to seamen or to apprentices to the sea service." For the prosecution it was the police officials at Adelaide claiming the money on behalf of the contended that the term

as used in that section applied only trustee, and executed a power of attorney to a solicitor in Adelaide to to persons actually “employed or engaged on board ship” within the receive the money, whereupon it was immediately paid over by the police. definition of " seaman” in the Merchant Shipping Acts, 1854 (17 & 18 A police-constable was subsequently sent out to Adelaide to bring the Vict. c. 104), s. 2, and 1894 (57 & 58 Vict. c. 60), s. 742. The learned debtor back, and he on his return was first charged with forgery before judge directed the jury that the prisoners were not within the exception; the magistrates, who refused to commit him for trial, and afterwards they were convicted and sentenced subject to this case, which was heard charged with fraud and committed to the assizes, where he was acquitted, last term before Lord Ruseell of Killowen, C.J., the late Baron Pollock, The solicitors claimed a charging order for their costs in respect of all and Hawkins, Lawrance, and Collins, JJ., judgment being reserved. these proceedings on the £800 recovered from the police at Adelaide, and The judgment of the Court was read by

such order was granted in the county court at Carnarvon. The trustee Lord Russell or KiLLOWEN, C.J., who said the question for the court appealed, and the case was argued on the 11th of November. was what was the proper construction to be put upon the word “

THE COURT took time to consider their judgment, and on the 26th in section 16 of the Act of 1875. If there were no reason to the contrary of November Wright, J., delivered the following judgment of the court: "seaman” might well be construed in its largest senge as a seafaring On the facts in evidence and the findings of the judge we come to the man. In construing an Act of Parliament, however, it was necessary to conclusion that the solicitors were employed by the trustee with the inquire into the intention of the Legislature and take into account other sanction of the committee of inspection, expressly or mainly for the legislation bearing on the question. The question then arose, Why should purpose of the recovery of the money in question for the benefit of the seamen be exempted from the provisions of the Act and not carpenters or creditors. Therefore, three questions of law are raised, each of them of other workmen ? If

meant seafaring men it would be some importance and difficulty. The first is, whether the money can be difficult to suggest any reason for so large an exception, whereas if it was regarded as having been recovered or preserved by the solicitors in or by taken in the limited sense of the definition in the Merchant Shipping Acts the bankruptcy proceedings? No jurisdiction was exercised by the Banka reason might be found in the special legislation of those Acts applicable ruptcy Court in or towards the recovery or preservation of it. So far as to " seamen " as therein defined. If, for instance, there were a series of appears all that was done was this: The solicitors, in their capacity as clauses similar in principle to those in the Act of 1875 by their language solicitors employed by the trustee, made an application for the money to specially adapted to the case of sailors in actual employment the dis- the police authorities in Adelaide, and obtained it from them. The mere tinction would be obvious and the argument in favour of the prosecution fact this was done by the solicitors as solicitors in the bankruptcy does not irresistible. But although the provisions of the Merchant Shipping Act, seem to us sufficient. Suppose that I instruct a solicitor to bring an action 1854, as to sailors in actual employment were not similar to those in the to recover my horse from a person who has wrongfully obtained possession Act of 1875, the Act of 1854 had provisions which had an important bear- of it, that the solicitor commences an action against that person, but hearing ing on the present case. By the interpretation clause (section 2) it was that the horse is in the hands of a third party, applies to the third party enacted that " seaman shall include every person (except masters, pilots, for and receives from him the horse, could it be said that the horse was and apprentices duly indentured and registered) employed or engaged in recovered or preserved by or in the action within the meaning of the any capacity on board any ship.” By section 243 it was provided that statute ? On the contrary the action in such case has been for wilful disobedience to lawful command a seaman should be liable to ineffectual, and may have been improvident. The second question is, imprisonment. By section 257 every person who persuaded or attempted whether, if the money ought to be regarded as recovered or preserved in to persuade ang seaman to refuse to join his ship, or to desert, or to the bankruptcy proceedings, the Bankruptcy Court bas jurisdiction to absent himself from duty should in respect of each such seaman incur a make a charging order under section 28 of the Solicitors Act, 1860 ? penalty not exceeding £10. These provisions created a wide distinction Primâ facie the proceedings in a bankruptcy appear to be within the between a seaman actually employed or engaged under the Merchant language of the section

or proceeding in a court of Shipping Act and a mere seafearing man not so actually employed or justice”; nor does there seem to be anything in the objection that engaged. With reference to the offence dealt with by the Conspiracy the money was already vested in the trustee by the bankruptcy.. Property Act, 1875, the captain of a vessel had ample power to deal with a seaman is often recovered in an action by a solicitor for the very reason that it was under his command. He might require him as a lawful command under already vested in his client. Nor do we tbink the question decided by Re section 243 (3) to abstain from intimidating, or if the seaman attempted Suffield (36 W. R. 303, 20 Q. B. D. 693) or by Re Wood (1897, 1 Q. B. 314, to persuade another to refuse to join or’ to desert the captain might 45 W. Ř. Dig. 155). Apart from these authorities the principal difficulty summon him for the penalty. Under these circumstances the Legislature in the way of holding that there may be cases in which a bankruptcy might well have considered the mischief dealt with by the Conspiracy Act court could make such an order is that rule 125 of the Bankruptcy Rules of 1875, already provided againet, and have declined to add a cumulative prescribes a certain order of priority of payments, and the effect of a remedy. It was suggested in argument that a difficulty might arise as to charging order would presumably be to vary this order of payment in




" suit


favour of the solicitor, although he must be taken to have accepted his fund to be established for providing an indemnity in case of fraud or retainer with knowledge of the prescribed priority. Although in the view mistake, the fees will have to be ixed at an amount that will add which we have taken of the first question it may not be necessary to materially to the expense of purchasing or mortgaging properties. If the express an opinion on this second point, we do not see how the difficulty fees are limited, and in consequence do not produce sufficient to meet the could be got over. The third question again only arises if the viewe expenses, the taxpayer will be called upon to make up the deficiency. expressed above are wrong. If the court is entitled to make an order to Your committee accordingly recommendwhat costs will the order extend? On the one side it is said that the order (a) That having regard to the vast number of properties which would will extend to all the solicitor's costs in the bankruptcy and in prosecu- be affected, and the immense value, complexity, and importance of the tions directed by the court. On the other side it is said that the order interests involved, the county of London is not a suitable county for the ought to be limited to the costs of the actual application for and obtain- first trial of the doubtful experiment of compulsory registraticn. ing the money. We do not think that the whole of the proceedings in a (6) That the London County Council be informed in reply to their bankruptcy can for this purpose be regarded as necessarily one. There inquiry that the vestry do not approve of registration of title being made may be separate cases against each of ten or a hundred debtors of the compulsory in the county of London under the Land Transfer Act, 1897. bankrupt. The claims of each of ten or of a hundred creditors may have (c) That a copy of this report be forwarded to the members of Parliato be disputed in several ways, and in such a case it could hardly be con ment for the metropolitan constituencies, to the Corporation of the City tended that money recovered from one debtor could be charged with the of London, and to the other vestries and district boards of the metropolis. costs of all the cases. On the other hand there may be cases in which all

(Signed) W. F. Craies, Chairman of the Meeting. the proceedings in the court really are directed to one matter, and in such a case the charge, if any, might properly extend to all the costs. In the The General Purposes Committee of the London County Council have present case we think that we have not sufficient information to enable us reported as follows with reference to the proposed application to London to decide on which side of the line the case falls, and that, if it were of the Land Transfer Act, 1897. After setting out the letter from the necessary to decide this question, the matter ought to go back for further Lord President of the Council enclosing the draft order to apply the Act inquiry. The appeal will be allowed with costs here and below.-Counsel, to London, they referred to the procedure with which, under the Act, the Herbert Reed, Q.C., and Carrington ; Robson, Q.C., and S. J. Evans. County Council was allowed to deal with the application of the Act to SOLICITORS, Saffery, Huntley, f Co; Lloyd, George, & George.

London. They continued : “With reference to the suggestion that [Reported by P. M. FRANCKE, Barrister-at-Law.]

compulsory registration should be limited at first to a part only of the county, it is not clear in what way this limitation can be imposed 80 as to enable subsequent extensions to all parts of the county to be made without a further order being necessary. But we think it

reasonable to assume that this can be done, and it appears probable THE LAND TRANSFER ACT, 1897.

that the draft order may be so amended or varied as to specify a differThe following report of the Law and Parliamentary Committee was ent day for the commencement of compulsory registration of_title on submitted to, and adopted by, the vestry of the parish of St. Mary Abbotts, sale of freehold land in four or more divisions of the county. The Lord Kensington, on the 1st of December, 1897.

President invites the county council to make suggestions for the consideraStating

tion of the Lord Chancellor as the way in which the Act should be brought That the attention of the committee has been called to the Land into operation, and as to arrangements which would be likely to prove Transfer Act passed in the last seksion, by section 20 of which power is convenient, and it may be thought desirable that the business should be given to the Privy Council to select one county in England in which the taken up progressively according to divisions of the county, following registration of title to land shall be made compulsory, provided the possibly the divisions recognized by the Local Government or as to council of the county does not object.

county courts. Upon this important matter it is well to remember that The committee bave also had before them a communication from the sub-section 10 of the same clause provides that any order made under this London County Council calling attention to this particular provision of section shall be made with due regard to the utilization (if practicable) of the Act, intimating that the council have received formal notice that the any land registry existing in the county.' The Middlesex Register of county of London has been selected in which such compulsory registration Deeds is in operation north of the Thames in every county council divishould be enforced, stating that the question of applying the Act to sion except the old City, and although there is, of course, a wide distinc. London is a very important matter, and that before coming to a decision tion between such a register and a register of titles, there is obvious thereon, the council would be glad to have the views of those bodies who economy and advantage in the suggestion. If part only of the county is are specially interested, and accordingly asking the vestry to furnish the to be dealt with in the first case there is apparent advantage in taking council with their views on the subject.

that portion or some part of that portion of the county which is dealt with Your committee desire to state that, recognizing the importance of the in the existing register of deeds. We have addressed a letter to the City matter and in anticipation that the Privy Council intended to select the Corporation and to other bodies, inviting their views upon the matter, and County of London, they have had the Act under careful consideration for we propose to report fully to the council after the Christmas recess when come weeks past, and they now submit the following observations replies have been received.” The report was, after discussion, adopted. thereon :

Since 1862, when the existing land registry office was established, it has been open to landowners to voluntarily register their titles. Experience has, however, proved conclusively that the registration of titles at that

LAW SOCIETIES. office has involved far greater expense and delay than the present system

LAW ASSOCIATION. of transferring property by deed, and the office has in consequence been practically shunned.

At a meeting of the directors, held at the Hall of the Incorporated The language of the Act of 1897 is very involved, and the Act has to be Law Society on Thursday, the 2nd of December—the following being read in conjunction with the Land Transfer Act, 1875, some of the sections present, viz. : Mr. Charles Burt (chairman), and Messrs. H. C. 'Nisbet, of which are repealed or amended. As a result many of the provisions R. H. Peacock, R. J. Pead, 8. Smith, J. Vallance, 8. Whitehead, and are obscure in the extreme, and can be variously interpreted. If, there- Arthur Carpenter (secretary)—forty-three new members were admitted to fore, the compulsory provisions of the Act come into operation they will, the Association, and other general business was transacted. in the opinion of the committee, certainly be a fruitful source of litigation.

UNITED LAW SOCIETY. There is every reason to fear that compulsory registration of title as Nov. 29.-Mr. C. W. Williams in the chair.-Mr. J. R. Yates established by the Act will, if applied to London, add most seriously to moved : “That it is the duty of the Government to render financial the difficulty, expense, and delay of buying, selling, or mortgaging pro- assistance to the Sugar Industry in the West Indian Colonies.” Mr. perty. A title is to be registered either as (a) indefeasible, (B) qualified, A. C. F. Boulton opposed; and the debate was continued by Messrs. or possessory. Having regard to the elaborate precautions to be taken A. C. Mutter, S. E. Hubbard, W. F. Symonds, N. Tebbutt, C. H. Kirby, and the length of the title that must be shown, an indefeasible title will W. S. Sherrington, J. F. C. Benuett, and J. W. Weigall. Mr. Yates only be obtainable in the rarest cases. A qualified title will, it is confi- replied. The motion was carried by five votes. dently anticipated, be worse than useless, as it will suggest a doubt that will gravely embarrass a sale or mortgage. A possessory title will convey no guarantee of title, and it admittedly cannot be of any value for many years. The certificate will, however, add another to the documents of

LEGAL NEWS. title that will have to be investigated and paid for whenever the property is dealt with, and dealings in property, particularly wbere the purchase

APPOINTMENTS. money is small, will thus be greatly hampered. At the present time it is the practice of the leading London land of the Justices of the High Court. Sir Walter is the only son of the late

Sir Walter PHILLIMORE, Bart., D.O.L., has been appointed to be one societies to grant free conveyances to their purchasers. They can do this Sir Robert Phillimore, Judge of the Admiralty Court. He was educated as the conveyances are prepared in their own offices at a minimum of at Westminster and Christ Church, Oxford, and was elected to an All trouble and expense. If, however, the transaction has to be effected Souls' Fellowship, and became Vinerian Law Scholar in 1868. He was through the Land Registry Office the committee believe that expense and called to the bar in 1868, and is a bencher of his inn. He has also a delay will be involved which will impede rather than facilitate the free patent of precedence. transfer of land. Compulsory registration of title in London would, it is submitted, involve

Lords Justices Henn COLLINS and WILLIAMS have been sworn in as the employment of a large staff of officials, and, if once adopted, it is Members of the Privy Council. obvious that, whether successful or not, it will practically be impossible to Mr. ALEXANDER D. O. WEDDERBURN, Q.O., has been appointed Recorder put an end to the system. If the fees charged on transfers, &c., realize of Gravesend, in the place of Mr. Morton W. Smith, appointed Recorder sufficient to pay all the expenses of salaries, pensions, &c., including the of Rochester.

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