Page images

w' ' ' _ _ _


titled. P-rimd facie, as Roman, J ., remarked, the proving of several debts in a lump sum may be right, but where in respect of some of the debts the trustee has different rights over against third parties, or where there are difierent debts covered by different securities, without right of consolidation, the rights cannot be worked out without a distinction being made.



Tm: Land Transfer Act, 1897, deals with two separate matters : in Part I. it purports to establish a real representative, in Parts II. and III. it amends the system of registration of title and provides for rendering registration compulsory. The connection

etween these two matters is very slight. The establishment of a real representative will facilitate dealings with registered land upon the death of the owner, but otherwise the change efiected by Part I. is quite independent of registration, and there would have been obvious advantages in placing it in a separate statute. More attention could have been given then to the details of what constitutes the most important alteration in real property law of recent years. The plan which has been adopted of extending personal representation to cover real representation, and boldly giving to the personal representative in respect of real estate all the powers he has with regard to personal estate, pleases by its simplicity, but in practice it will probably be found that the diversities between personal and real estate raise nume -ous points of difiiculty.

Une of these, to which attention has already been called by various writers, relates to the vesting of the real estate of an intestate in the interval between his death and the grant of letters of administration. Section 1 of the Act provides, in sub-section 1, that “ where real estate is vested in any person without a right in any other person to take by survivorship, it shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him.” Section 2 provides for the administration of real estate in the same manner as personal estate, and it gives to the personal representatives in respect of real estate ‘ the powers, rights, duties, and liabilities of personal representatives in respect of real estate ” ; save, however, that one of several joint personal representatives may not, without the authority of the court, sell or transfer real estate, and save, also, that the Act is not to “alter or affect the order in which real and personal efiects respectively are now applicable in or towards the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies.” Subject to the powers, rights, duties, and liabilities thus specified, the personal representatives hold the real estate as trustees for the persons by law beneficially entitled thereto, and at the end of a year such beneficiaries can invoke the assistance of the court to compel a conveyance to them. If there is no reason for keeping open the administration beyond that time it may be assumed that a conveyance will be directed.

The general eiiect of these provisions is sufliciently clear. It is rendered impossible for a testator to interfere by his will with the devolution of the legal interest in his real 'estate._ That necessarily passes to his personal repres_eiitati_ves. In their hands it becomes subject to whatever liabilities can now be enforced against real estate, and for the purpose of satisfying such liabilities they have power either to sell or to mortgage it. In the interval, while it remains under their control they are responsible for the management, and must receive the rents. If necessity arises they can let the property, but this power will have to be exercised cautiously. In Oceanic Sham Namgatwn Co. v. Suthsrbury (16 O. D., at p. 243), Jnssnn, M.R., speal-ring of an underlease by an executor of leasehold property, said: “It is quite true that, havin the legal estate in the leaseholds, he may in some cases undeset them, and the underlease will be supported in equity as well as in law. But that is an exceptional mode of dealing with the assets, and those who _accept a title in that way must take it subject to the question whether it was the best way of administering the


assets.” Similarly, if the necessities of the case require it the executor is empowered to give notice to quit. Finally, when the real estate no longer requires to be retained for the purposes of administration,'he must convey such as remains intact to the heir or devisee, and hand over also the surplus proceeds of any sale or mortgage.

These extensive powers of the personal representatives make it important to determine with certainty how far they become immediately exercisable on the death of the owner. In the case where executors have been appointed no difficulty arises. An executor derives his title under the will, and his rights and powers date from the death of the testator. The law, it has been said (Wlu'telwa(l v. Taylor, 10 A. & E, p. 212) knows no interval between the testatcr’s death and the vesting of the right in his representative. He may accordingly do before probate all acts incident to the administration which do not require the actual production of probate of the will, and such acts will remain good even though he dies without having taken out probate (Williams on Executors, 9th ed., I., 250). He cannot, however, in general bring an action because in the course of the proceedings the probate will have to be produced. With an administrator it is different. He derives his title wholly from the letters of administration, and the property of the deceased vests in him only from the time of the grant (Woolley v. Clark, 5 B. & A., p. 745). Consequently there is no rule of law to assist the operation of the provision of the Land Transfer Act vesting the real estate in the administrator upon the death of the intestate by carrying back the administrator's title from the date of his appointment to the death. _

A similar question arose on the provision of section 30 of the Conveyancing Act, 1881, vesting trust and mortgage estates in the personal representatives of a sole trustee or mortgagee. “ Where,” it is provided, “ an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust or by way of mortgage in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time in like manner as if the same were a chattel real vesting in them or him.” Under this provision it seems to have been assumed by FRY, J., in Re P-illin_q’s Trusts (26 Oh. D. 432), that, in the absence of an administrator of a deceased sole trustee, the estate would vest in the heir-at-law, and upon the appointment of new trustees an order was made for vesting in them certain lands forming part of the trust estate “for the estate therein now vested in the heir-at-law of the deceased intestate trustee.” Subsequently administration was taken out to the deceased trustee’s estate, and the question was raised whether the legal estate in the real estate did not thereupon vest in his administratrix notwithstanding the vesting order. Pnaason, J ., for the purpose of securing the trust estate, seems to have assumed that it did, and he made a new order that, notwithstanding the previous order, the land should vest in the new trustees for all the estate therein vested in the legal personal representative. Thus under one order or the other the legal estate was clearly vested in the trustees. But upon the question where the legal estate had been in the interval before the grant of administration, PEARSON, J., gave no decision. “The question is,” he said, “ what happens when there is no personal representative ‘? If the legal estate does not vest in the heir, where is it? On the other hand, the wording of the section seems to evince an intention to exclude the heir.” In subsequent cases the difiiculty has been got over by vesting the trust estate in the new trustees for the estate which was vested in the deceased trustee at the time of his death: Re RacL'straw’s Trusts (33 W. R. 559), Ra lViZl1'am.r' Ii-we (ac Oh. D. 231).

As we have already stated, the question has already been discussed in relation to the Land Transfer Act by several writers. In a note contained in the ndrlmrla to the last edition of Woodfall’s Landlord and Tenant (p. lxxv.) the view is taken that the heir-at-law stands in the shoes of the deceased landlord for all such purposes as distraining, granting leases, and determining tenancies until the administrator has acquired aititle. This is the view which, in Ra Pz'Zl1'n_q’s Trusts, presenteditself as the most natural one, the estate devolving according to

[ocr errors]

the ordinary law until there was an administrator in whose favour the new statutory rule could operate. On the other hand it is pointed out by Mr. Ronnms (Devolution of Real Estate, p. 19) that, even if the legal estate does vest in the heir pending the grant of letters of administration, no purchaser, mortgagee, or lessee could safely take from him a conveyance or lease, since the estate of the heir would be determinable on the appointment of an administrator. Mr. Tvssnn, in his Real Representative Law (p. 19) adopts the view, which Pnmson, J., referred to as the apparent intention of the Legislature, that all right of the heir-at-law, qua heir, is excluded pending the grant of administration, and for want of anyone in whom the legal estate can vest it must perforce remain in abeyance; unless, indeed, it is vested like the intestato’s personalty in the judges of the High Court. Formerly, as Mr. Txsssx observes, the personal estate of a deceased intestate vested in the ordinary, pending the grant of administration. For the ordinary the Court of Probate Act, 1858, by section 19, substituted the judge of the Court of Probate ; and under the Judicature Acts it seems probable that for the judge of the Court of Probate are substituted all the judges of the High Court. For practical purposes, of course, the result would be the same as if the freehold were in abeyanoe, and this seems to be the effect of the new law. The Land Transfer Act, it is to be noticed, expressly says that the real estate vests on the death of the owner in his personal representative, and the fact that there is no personal representative ready to receive it does not seem to revive in the heir a right which is thus emphatically taken away from him. It would seem then that, ending the grant of administration, there is no one who oanllegally deal with the real estate, though, of course, if the solvency of the intestate is above suspicion it will be safe to pay rent to the heir. Such payment, however, would be no discharge to the tenant if the circumstances of the estate made it necessary for an administrator subsequently appointed to call for the money over again. The practical conclusion is that administration should be taken out as speedily as possible. Under section 1 (3) of the Act it can be granted in respect of real estate only, although there is no personal estate; and under section 2 (4) the court in granting administration must have re ard to the rights of persons interested in the real estate. The hair has it in his power, therefore, to protect himself.

[graphic][merged small][merged small]

A third edition of this book, the first edition of which, we believe, was only published in 1894, is a suflicient testimony to its merits. We described it when it first appeared as an admirable example of a text-book, and we see no reason to alter our verdict with regard to the present edition. The notes appended to the different sections are clear, accurate, and concise, and one advantage of the book is that difiiculties and questions arising, although not yet covered by any decision, are pointed out and discussed. By means of careful crossreferences the reader is directed to all the statutory provisions relating to the matter in hand, and a good index renders the contents of the work easily accessible. We could not desire a more convenient or complete book on the subject.



THE Lrcnnsmo Acrs, memo THE Acrs or 1872 AND 1874, TOGETHER wrm ALL ran Atnnoosa, Bsnnnoosn, REFRESHMENT House, WINE AND Bmmnousn, INLAND REVENUE, mp SUNDAY Cnosuvc Acrs RELATING THERETO. Wirn INTRODUCTION, Norse, Forms, AND INDEX. By the late JAMES Parnnsozv, M.A., Barrister-atLaw. Twa1.r1'n EDITION. By WILLIAM MACKENZIE, M.A., Barrister-at-Law. fihaw & Sans; Butterwcrth K: Co. '

This book has for some years been considered a standard work on the liquor licensing laws, and has been in the hands of most lawyers interested in this branch of practice. The fact that it has now reached a twelfth edition, and that only two years has elapsed since the eleventh edition appeared, shows the popularity of the work; and the recent important and far-reaching decisions make a new edition of “ Paterson " especially welcome at the present time. Although we have never admired the arrangement of the book, which in form is merely an annotated copy of the Acts of 1872 and 1874, still it is a singularly complete work and contains everythin that can be expected in a book of its class. The reputation gained by it in years past will suffer in no particular at the hands of the present editor, who has given the profession a book thoroughly up-to-date and carefully revised. The consequences of the decision of the House of Lords in Boulter v. The Justices of K em! (46 W. R. 11-}; 1897, A. C. 569), as far as they have been recognized up to now, are noted in their proper places. It is quite certain, however, that the full consequences of this famous decision have yet to be revealed, and that for some years frequent references to the case will have to be made. The editor has evidently been fully alive to this, and has well consulted the convenience of his readers bgp including in the appendix a full report of the judgments in the case.

[ocr errors]

The author of this work quotes the saying of Cockburn, C.J., that the Licensing Act, 1872, was “one of the most extraordinary jumbles he had ever met with,” and he sets himself the task of unravelling the jumble as far as possible. In this diflicult task he has achieved success to a considerable extent, and has produced a useful and carefull -written treatise on the liquor laws. The style of the book is distinctl good, and the subject is probably made as clear as it is capable of being made. The book is, however, in our opinion, rather too condensed in some parts, and its practical value, moreover, is to some extent lessened by the entire omission of many minor matters, which probably the author would argue are outside the scope of his work, but which are closely connected with his subject. For example, the book is silent concerning the provisions of the Revenue Act, 1885, as to the adulteration of beer, the Act of 1883, prohibiting! the payment of wages in public-houses, and the law forbidding pub ‘cans to deal in game. In the excellent chapter on certim-a-ri the author does not hesitate to indicate that in his opinion the correctness of the decision in Reg. v. Shannan (1898, 1 Q. B. 578) is still open to question. In that case, it will be remembered, the court held that, $8 a consequence of Boulter’a case, certiorari no longer lies to licensing justices, and we may point out that in Reg. v. Bowman (1898, 1 Q. .B. 663) Wills, J ., also intimated that he was not quite satisfied that the decision was right. The book is, on the whole, a useful addition to the literature on this subject, and in the appendix there will be found some valuable forms of notices of applications for licences and notices of appeal.

[graphic][ocr errors]

As the author of this work points out, the complicated state of the law of licensing is due mainly to the great number of amendments and additions which have been imposed upon the earlier Acts by later legislation. The object he therefore aims at is to lessen the trouble of referring to a large number of Acts by grouping together under a propriate headings those sections in the various statutes which relate to a particular subject, setting out the text of those sections verbatim and adding notes and references to decided cases. This plan has undoubtedly great advantages, and the author has carried it out most successfully, and has given lawyers a book in which it is possible to find what is wanted with the minimum of trouble. As, however, to carry out such a plan completely, a section of an Act might have to be repeated in some cases under several distinct headings, all the important statutes are set out in full in the Ap endix. The notes give the effect of reported decisions accurately andp clearly, and very few omissions can be found of cases of real importance or of tatutory provisions which in any way relate to the subject. The important recent cases down to a very recent date are all carefully noted. In short, the author has done his work well, and we believe the profession will find the book


useful and reliable. - I 4


Haimaoox ON TIIE Licnvsiivo Acrs AND THEIR Amiixisrruirion. By ALI-‘RED T. Davnss, Solicitor and Notary Public, Cursitor of the County Palatine of Lancaster. Tmnn EDITION. Macmillan & Co. (Limited).

This little book aims at presenting in a concise form a handy guide to the law regulating the sale of intoxicating liquor. It is apparently intended, not so much for the use of the legal profession, as to enable intelligent persons connected with “ the trade ” to inform themselves as to the law on any ordinary matter that may occur. It has now reached a third edition, and therefore no doubt satisfies a demand. This is by no means surprising, as the book contains a large amount of general information iiuder headings in alphabetical order, clear and practical directions to persons desiring the grant, renewal, or transfer of licences, some useful forms not to be found in more pretentious works, and a table of offences. It is evidently the work of a practical man with a sound knowledge of the subject.

[ocr errors][ocr errors]

This is a small book consisting of only about 100 pages, but for its size it contains an extraordinary amount of information on the law of licensing. If this branch of the law formed one of the subjects for the Solicitors’ Final Examination it would be an ideal book for the student, for it is clear, accurate, and well-written. The author is to be congratulated on the ability with which he has compiled an excellent summary of a difiioult subject, which, as he says, “ affords perhaps one of the very best examples of tessellated legislation.” In practice, however, something more than a summary is required, and it is constantly necessary to refer to the very words of the numerous statutes governing this important subject. Such words are, of course, not to be foimd in a book of this size, and therefore it cannot aim at entering the lists as a competitor with larger well-known text-books. At the same time, as far as it goes, the book is reliable, and willbe acceptable to many. It also contains in the appendix some useful forms not easily to be found elsewhere.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]
[merged small][merged small][merged small][ocr errors]

This was a motion on behnlf of the plaintiff William Farrow Taylor that the defendants might be restrained from soliciting in any way, or endeavouring in any way to obtain, the custom or goodwill of the paper called the Oambridge Daily News, or the custom or goodwill of the business of printers, newspaper proprietors, and publishers carried on by the plaintiif at the Utlmbridge Daily Nun office, Cambridge, or from attemptmg in any way, either directly or indirectly, to take away any portion of the plaintifIE’s business or goodwill; from representing or making statements to the customers of the plaintiff so as to deceive, or calculated to deceive, the customers, and induce them to believe that the new business, now or about to be carried on, was formerly the plaintiff ’s business or is a continuation of the plaintiff's business ; from inducing the plaintiff's employees or servants to break their engagements with the plaintiff, or leave the plaintii‘f’s employment or service for the purpose of being employed in the new business. From the aiiidavits it appeared that the plaintiff was the proprietor of the Cambridge Daily News, the paper having been started by him in 1838. Iii 1897 the defendant Kilner and others, as executors of one John Kilner, commenced an action against the present plaintiff in which a declaration was made that they were possessed of the business of the newspaper as mortgagees, and by a later order it was ordered, with the consent of all parties, in effect that upon payment by the plaintiff into court of £9,200 he should be entitled to redeem. The plaintiflf accordingly redeemed, and about the 28th of J une, 1898, retook possession of the premises. The plaintiff alleged that he subsequently discovered that one John Smart, while acting as his manager and editor, at the instigation of the defendant Kilner, who contemplated starting a rival paper at Cambridge, bad endeavoured to induce the staff to leave his employ and to join the staff of the defendant Kilner. In their aifidavits, however, Smart and Kilner entirely denied this allegation. It was further alleged by the plaintiff that in consequence of representations made by Smart that the defendant Kilner had authorized him to engage several of the plaintiffs employees at higher wages such employees had given notice and left his service. It was further alleged with regard to one Robert Cleaver, who was also employed by the plaintiff, that Smart told him that if he would leave the plaintiff's employment without giving notice the defendant Kilner would hold him harmless against any action for damages. The plaintiff further complained that Smart’s son had called upon a newsagent named Sophia George and informed her that a new daily paper was about to be started in Cambridge in connection with C'!nnbridg0 Daily Neu-s and asked if she would sell it. She had for ten years been an agent for the sale of the Cambridge Daily Nmca. Mrs. George's allegations were, however, entirely denied. The Cambridge Gazette Cu. (Limited) was registered on the 8th of September, 1898, and the plaintiff further alleged that on or about the 12th of September, 1898, it came to his knowledge that the defendant company, through their directors or agents the defendant Kilner and the said Smart and others, were soliciting his customers and agents to transfer their custom to the defendant company and the proposed newspa r, the Caiizlmirlyr Gazette. He also alleged that he had heard that the dlifendants, their servants or agents, had represented to Mrs. George that the Gazette was his newspaper and was to be issued from his oflice. In the aflidavits filed on behalf of the defendants all these allegations were denied, and it was said from the first the defendants had particularly endeavoured to make it known that the plaintiff had nothing to do with the defendant company. Upon behalf of the plaintiif it was submitted that where a mortgage had been redeemed and the mortgaged property was a business, the obligations of the mortgagee to the mortgagor are at least the same as those of the vendor of t-he goodwill of the business. The mortgagee must not destroy that which he held as mortgagee. The defendant Kilner and his co-executors were trustees for the plaintiif. It was true that the defendants had a right to start a rival newspaper, but they had no right to seduce away Smart, the plaiutiif’s editor and manager, and nine others of his employees. Smart was acting for Kilner, and no doubt a part of the scheme was to induce the plaintiff's staff to leave the plaintiff's service. The defendant Kilner had no right to use the know

edge he had gained as mortgagee as to the value of the services of the plaintiif’s servants, and the defendant company ought not to have used the secrets its directors had obtained. Kirmard v. Trollope (37 W. R. 234; 39 Ch. D. G36) and Treyo v. Hunt (44 W. R. 225; 1896, A. C. 7) were referred to. Upon behalf of the defendant company it was submitted that there was no evidence against it; and Robb v. Green (1895, 2Q. B. 315; 43 W. R. Dig. 49) was cited. For the defendant Kilner it was submitted that there was no evidence against him of having solicited the plaintiffs customers to leave him. If any such solicitation had in fact taken place (which was denied) it was not authorized by him. As to the charge of instigating Smart to induce the plaintifI’s servants to leave his employment in breach of their engagements with him,Kilner in his aflidavit denied that he did any such thing, and Smart said that no suggestion had been made to any one to break his contract with the plaintiflf and no indemnity

‘ offered by anyone. In reply it was submitted upon behalf of the plaintiff

that upon the evidence the attempts alleged had been made out, and that


the plaintiff was therefore entitled to the injunction asked for. Exchange

Teleyraph 6'0. v. Gregory (1896, 1 Q. B. 147; 44 W. R. Dig. 44) was referred to.

CHANNBLL, J.—I do not think that any case has been made out which will justify me in granting an injunction. I do not refuse the injunction upon the ground that a mortgagee after reconveyance would not be under the same obligations as a vendor. It is not necessary to decide that point. The obligation which a vendor is under is that he may not, although he may set up a rival business, solicit the customers of the old firm to leave the old firm and to come to him. It depends upon the nature of the business whether the request to deal with him would be a request to leave the old business. Where the business is that of a newspaper proprietor, it appears to me that a request by the vendor to a person to buy his newspaper is not a request to leave off buying the old newspaper. In the pgesent case I do not find a breach of any obligation which Kilner would

under if he had sold the newspaper to the plaintiff. An instance relied on by the plaintiff is that of Mrs. George. It is said that Smart, jun., endeavoured to persuade her to sell the new newspaper, and told her a falsehood by falsely stating it was to be started in connection with the Cambridge Daily News. I do not think that the plaintiffs evidence upon this point is sufficient, and it is contradicted. The next instance complained of relates to the plaintiff's employees. Now, it is part of the common law that 0. person may not induce another‘s servant to break his contract of service. The decision in Allm v. Flood (-16 W. R. 258; 1898, A. C. 1) shews that it is not wrong to induce a servant to leave his master’s employment, provided that the servant commits no unlawful act in leaving his master’s service. In the present case the plainLiff‘s servants committed no breach of contract, and therefore the decision in Allan v. Flood is directly in point. The instance of Robert Cleaver, who is alleged to have been requested to break his contract with the plaintiff, is the only shadow of a case made out upon the plaintiffs behalf. It appears to me that this might be an attempt upon the part of Smart which would be suflicient to justify an injunction against the person so attempting to commit a wrong. But, in my opmion, this one case is not sufficient tn justify me in granting an injunction against the defendant Kilner. I do not think that there is sufiicient evidence that Kilner authorized it in such a way that it can be imputed to him that he attempted to do an unlawful act. There is no ground for granting an injunction against the Cambridge Gazcltc inthe absence of any sufficient case against Kilner. As to the allegations with regard to Mrs. George, I think that in ull probability there is some mistake on the part of Mrs. George in reference to that matter. It might assist ii new newspaper to say that Smart was editor of it, but that would be no wrong thing. The plaintiff would be entitled to say thut the Cambridge Gazelle wus edited by the gentleman who so successfully edited the Cambridge Daily News. The costs of the motion will be the defendants’ costs in the acti0n.—Coi'.\'si=.L, Everett, Q,.C. (E. Ford with him) ; Alexander, Q.C. (W. Baker with him) ; Ulamon. Soucrrous, Stanley Evans §- 00., for 6'. P. Jones, Cambridge; Torr, Gribble, Oddie, KS‘ Sinclair," E. Bromley.

[ocr errors][ocr errors][ocr errors]

This was a motion on behalf of the plaintiffs, Messrs. Hobbs, Hart, & Co. (Limited), that the defendants, their agents, servants, workmen, and others employed by them might be restrained. from pulling down, cutting, under-pinning, raising, or otherwise injuring or interfering with the party wall between the premises Nos. 75 and 76, Cheapside, in the Oify of London, and from appointing any surveyor under section 91, sub-section 3, of the London Building Act, 1891, or otherwise until the trial of this action or further order, otherwise than in accordance with the provisions of the said London Building Act, 1891. In support of the motion it was said that the plaintiffs were the owners of 76, Cheapside, and the defendant Grover was the building owner of adjoining premises, 75, Cheapside, the defendant Roe being his surveyor appointed under the London Building Act, 1894. The premises 76, Cheapsido were separated from No. '75, Cheapside by a wall which is a party wall within the meaning of the London Building Act, 189-1. The plaintiff company occupied the basement, ground floor, and first floor of the promises No. 76, Cheapside, as showrooms, warehouses, and offices, and the remaining portion of the building was let to tenants. The building was erected in or about the year 1888, and was specially constructed to curry the great weights of the iron safes and strong rooms which were on show there, and any interference with the party wall between that and the adjoining building would have to be carried out with the greatest care and under strict supervision. If the party wall was to bo taken down to be rebuilt, or seriously interfered with, it might entail the removal of a largo portion of the plaintiff company’s safes and tho taking of other temporary premises by the company, and in order to make the necessary arrangements for this the company would require at least several months’ notice, otherwise very great loss and inconvenience would accrue. On the 2nd of September last the plaintiff company received from the defendant Grover the following party-wall notice purporting ing to be given under section 90 of the London Building Act, 1894: “ I, the undersigned, being the building owner of No. 75, Cheapside, in the county of London, hereby give you notice that upon the expiration of two months from the date hereof I intcnd to exercise the rights conferred upon the building owner by section 88 of the above Act in respect of the party structure separating No. 75, Cheapside from No. 7 6, Clieapside adjoining


thereto on the east side thereof, that is to say: To execute such of the works to the party structure as may on surveybe found necessary or desirablc—namely, To make good, underpin, or repair the same where defective or out of repair; to pull down and rebuild the same wholly or in part, if (l) so far defective or out of repair as to make such operation necessary or desirable for the intended new building ; (2) not conformable with the regulutions of the said Act; (3) of sufiicient strength for the intended new building. To raise or underpin the same or any external wall built against the same as may be necessary or desirable for the intended new building. To cut into the same for any lawful purpose. 'l‘o cut away any footings, jambs, flues, or other projections, as may be necessary in order to erect the intended new building. To out or take down such parts of any wall or building of the adjoining owner as may be necessary in consequence of ihc same overhanging the ground of the building owner in order to erect the intended new building. To perform any other necessary works incident to the connection of the said party structure with the premises adjoining thereto." It was submitted that the notice was bad under the London Building Act, 1894. It did not say what the defendants proposed to do. The London Building Act, 1894, imposed an obligation upon the building owner to give particulars of his proposed scheme. If a notice such as this were suflicient, and intended by the Legislature, the Act would have expressly said that it was to be a notice for all or any of the works mentioned in section S8 of the Act. '1'lie building owner need not set out the details of what he proposed to do, but he must disclose the nature of his proposed scheme. Upon behalf of the defendants, an undertaking not to act upon that part of the notice which dealt with raising the wall without giving the plaintiffs further notice was offered.

O}{AX.\'EI.L, J .—The first part of the notice seems to me to be quite good, but I have some doubt as to whether the part relating to raising the wiill is good. Upon the defendants undertaking not to act upon that part of the notice which deals with raising the wall without giving the plaintiffs further notice (without prejudice to any question), and to give the pluintiffs inspection of their plans, and to give the plaintiffs a further ten days to appoint a surveyor, there will be no order except that costs be costs in the action.—CoL'ivsiai., xlfulligan, Q,.C. (J. Gatey with him) ; Alaumder, Q,.C. (A. H. Jam-l with him). Somcrroas, Savery Q Stevens ; Emmanuel Q Simmonds.

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

County Courts. JONES v. C. & W. WALKER. Birmingham. 11th Oct.

Woni;nsu’s COMPENSATION Acr, 1897—Basis on Wiucu COMPENSATION is Parsons.

This was the first case brought under the above Act in the Birmingham County Court. It was an arbitration at the instance of an injured workman. The undisputed facts were as follow: The applicant was Richard Thomas Jones, described in his application for arbitration as “ blacksmith,” employed at the time of accident as a “fitter.” The respondents were C. & W. Walker, of Donnington, Salop, engineers, who were engaged in the erection of a gas-holder for the Birmingham Corporation at Saltley. Jones, who had been out of work for seven weeks, called several times at the Saltley \Vorks to ask Monk, the respondents‘ foreman there, for employment, stating that he had previously worked as a smith. On the last of the occasions, about 7.30 a.m. on the 11th of July, Monk told Jones that there was no smiths’ shop up as yet, but that he could go and help a fitter named Foxhall who was engaged in fixing guide-rails to stays for a gas tank. About 10.30 a.m., when Jones had been at work some two and a-half hours, Foxhall was bolting the rails at the top and Jones was holding them in position at the bottom, when a sledge-hammer, in use by another workman at work fifty feet above, accidentally broke, and the head fell and struck Jones in the back, inflicting severe injuries which had caused him total present incapacity to work. \Vhen Monk put Jones on to work, nothing was said as to rate of wages. In his previous employment as a smith his weekly earnings had averaged 33s. 6d. per week. He therefore cluimed tho maximum allowance under the Act —viz., half wages at that rate, or 16s. Dd. per week, after the first fortnight. It was admitted that the current rate of labourer’s wages was 2-ls. per week, and that the respondents had tendered compensation accordingly, ut the rate of 12s. per week, which the applicant had refused, and instituted these proceedings to recover the larger sum. The evidence as to the kind of work Jones was doing before the accident occurred was conflicting. For the applicant, reference was made to Schedule I., s. 1 (6) of the Act, which provides that the amount of compensation payable shall be as follows: “ Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week, not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed; but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound.” It was argued that, though, no doubt, the language of the section more properly applied to cases where the workman had been actually employed for more than a week, there was nothing to preclude an applicant, in a case like the present, where the actual employment had existed for less than a week, from claiming compensation computed on his average weekly earnings in a previous and different employment. The section said nothing about any contract between employer and employed, and in a case like this an agreed rate of wages to be paid, whether expressed or implied, could not be taken as a basis. Moreover, “ earnings ” meant wages actually received for work done, and not wages agreed to be


paid but not yet due and payable. Consequently, as the applicant had received no earnings in the respondents’ employ, the only possible basis of assessment was a former rate of eamings, unless the case was a casm omium, for which the Act gave no remedy—a construction not to be put upon the Act except in the last resort. For the respondent it was pointed out that only one scale of compensation was provided by the new Act, and it was accordmlgly small, the Legislature recognizing that a high scale applicable equa y to accidents caused by an employer’s negligence and to unavoidable accidents would be unjust. Consequently no well-advised workman who could make out a cause of action under the Employers’ Liability Act or at common law would proceed under the new Act. Where, therefore. the only remedy was imder the new Act, the workman not unnaturally would endeavour to “magnify his oflice" as much as possible. Accordingly in the present case the applicant claimed. to be paid as a skilled mechanic, and not as a mere labourer. There was no reasonable doubt as to the meaning of the section, which throughout must be read with referenceto “the same employer.” If by the contract of service the rate of wages per week had been expressly agreed upon, it could not be said that because a week’s wages had not been earned before the accident happened the applicant was entitled to pray in aid a rate of wages earned under a previous employer. If so, no employer would be safe in giving an odd job to, or in engagmg as a handy man a skilled workman out of work and glad to earn anything. Where, as in the present case, nothing is said at the time of engagement as to rate of wages, the capacity in which the workman was employed must be regarded, and the current rate of wages in such employment be taken to have been impliedly agreed upon. Iastly, “ earnings ” did not necessarily mean wages earned and paid, but included a rate of wages expressly or impliedly agreed to be paid for work to be done. This was supported by the expression “ able to earn” in section 2 of the schedule.

His Hoivouu Janos WHXTERORNE, in delivering judgment, said : In this case, which has been very well argued on both sides, a somewhat important question under the new Workmen’s Compensation Act is raised. I find on the facts that the applicant was engaged as a labourer, and not as a smith ; and that he, whilst engaged as a labourer, with no special agreement as to terms, after two and a-half hours’ work and before any wages— or any to speak of—had been earned or paid, met with an accident clearly incapacitating him from labour, not entirely, but to a great extent. The liability of the employers under the new Act is admitted, and there is no dispute as to the facts of the accident or the injuries sustained. The question, therefore, simply is whether the Act enables the court to give the injured workman any compensation—in other words, whether it furnishes the court with any rule, scale, or criterion for ascertaining the amount of compensation in circumstances which perhaps were not very definitely contemplated when the Act was framed. It is plain enough that what was mainly contemplated was the case of a man who had been earning and receiving weekly wages. Is the case of a man who has not excluded? Two questions of construction arise imder the First Schedule, section 1 (6) and section 2. First, can you in such a case as this look back to some former employment under difierent masters in which he was earning other wages? Secondly, if you cannot, can you infer or imply a rate of wages from the terms of the engagement though no wages have been actually earned owing to the accident happening immediately after the engagement? On the first point I hold that you cannot look back to any former employment. That cannot be the right construction. If it were, the workman would always select a previous employment at perhaps very high wages, when he was younger and abler, to fix his present employer with compensation which at such a rate would be unjust, and, I think, not required or warranted by the words of the schedule. The rate of wages is the rate of wages in the employment in which the accident happened. But does that prevent the workman from getting any compensation where no rate of wages was specially agreed to, or oven to any perceptible degree earned? I think not. I must bear in mind the purpose of the Act and endeavour to carry it out loyally. The ob'ect is to give workmen engaged in employments to which the Act applies, compensationin every case where they are injured in the course of the employ~ ment of their masters. Hence I think I ought to hold that the “ weekly earnings ”-—-to use the term employed in the First Schedule to the Actthough not received, nor even to any perceptible degree earned, are the earnings which would, according to the custom of the trade, flow from the engagement. As to that there is no dispute. It is admitted that the current rate of wages of a labourer is 2~ls. a week, and that, consequently, the weekly compensation-—which the respondents have offered to pay, and now offer to pay—would under the provisions of the First Schedule, s. 1 (b), be 12s. per week. On that footing I decide this case.

It was stated that the Palatine Insurance Company (Limited), the real defendants, did not ask for costs. As, however, the great majority of these cases were the subject of insurance, it was desirable that it should be known that leniency in the present case must not be taken as a precedent, nor workmen be led thereby to suppose that they can indulge in litigation under the new Act without any risk of having to pay COBtS.—SOL1(‘IT01lS, Parker ; Dr. Showcll Rogers

[graphic][merged small]
[ocr errors][merged small]

I, Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain, do hereby order that the action mentioned in the Schedule hereto shall be transferred to the Honourable Mr. Justice Wnght.

SCHEDULE. Mr. Justice Sriauivo (1895-H.—No. 3,153).

In re Hunwick 8: Cobigpany, Limited. William Berry Kellock v Hunwick &: Company, Limi , and another. HALSBURY, C. 5


(Continued from p. 821.)

To violate a blockade is an operation attended with all the risks of war. Indeed a blockade runner is in even a worse positionthan a hostile belligerent, for not being a combatant he may n0t_resist the eiforts of the blockaders to destroy or capture him. ?e is enttledfip escapehe cgn, but a single shot or blow in his own de ence ma es m a p an a belligerent capturing him may treat him as_such. But it must always be remembereld that fog; ggliligeigilit ta eéerciise Ehesiagigh ‘preroga(\;1vels he must first ave esta "s a r an e ec ive oc e. mere ec aration that the port is closed is not enough. It must be so closely watched and invested with an adequate naval force that no neutral can leave or enter without incuérinhg iulgmediatg danger of (peingtsunk op tclpptgred. I have already state w at owers ave opte e arms 0 e ec arstion of Paris. In 1859 at the Treaty of _Zurich the French Government restored all captured Austrian vessels which had not been condemned by the prize court. By a decree issued on the 26_th of March, 1865, she also restiged all capturgg Illllfixician dvess§l% to their ovtvnpi-_s. In_l8ot0, during the hinese War t ng an an rance gran e immuni y o priva property at sea. Dur-ing thedv{r,ara{>letl\;veenPItaly, Piiiésiail and Auéietga, private property was re y _ t ese owers. y as inc ii a clause to the like efiectalin its maritime code. In 1§60 a deputation of merchants from Bristol, Manchester, Leeds, and other influential towns approached Lord Palmerston and requested him to support the suppresion of maritime capture, but, notwithstanding this, and that in established divm of his he stated, “ There is no other European State which possessesa commerce so extensive as that of England: I conclude, therefore, that it is to the interests of the English to invite other States to accord to commerce the greatest possible freedom,"h subsequeéitly, £1p01l§6gt:10l7l0€telJ6lDB brought forward in the House e oppose it. n e_ma rwas again before Parliament upon a motion by Mr. Gregory, which, though supported by many members of _varied opinions, was rejected. It would be wearisome to go into details regarding the many other attempts which have been made at home and abroad to secure the immunity from capture of private property at sea, or to quote from the mass of authorities who have advocated such immunity, though it is of interest to note in passing that Mably was the first to advocate the immunity of private property at sea (“ Droit Public do l’Europe fondé sur les Traités," 2nd ed., 1754, vol. 2, pp. 310, 472), and that as earlyas 1785 the United States and Prussia, under the auspices of Franklin and Frederick the Second, bound themselves by treaty to respect private property at sea. Nor is it for me to here discuss the general or particular advisability from the standpoint of any individual nation or mankind at large of securing it-9 total abolition and the absolute freedom from capture of all private property at sea, or of returning to the seizing oi enemy’s goods on even neutral bottoms, to contrast the conduct of war in this respect afloat and ashore, or to prove zhatdphetexistpnclf of this right an anomaly and contrary to t e 'cta es o umanity. wi therefore cllose the rtprprsent portipn of tgziis palgper lbyalthe dgeneizll statement that apa om priva eering e o y eg an mo conclusion is that any State which wishes to adhere to the capture of private property at sea has every right to do so. Upon occasions privateersmen have rendered yeoman service to the State. Of this Fortuuatus Wright in the Mediterranean, and George \Valker in home waters, are stiiilking examplles, andi ta: 6I3§8.g8;IIlII6:1il7S b$liW8BIl)1 2:1: T_1/grass and a Dutc 50-gun s ip, an e rawroo _an a 11 privateer in 1781, to take only fwo instanigeis in cliosc 81100685101; outdof very many compare very favourab y as to o s an _courage an en iuance displalyed with the performances of any King’s-ships. It is interesting for this meeting to consider what constitutes :1. prize of war and the Engllflll law bearing upon the subject. A prize or _pi-ize of war in the more modem acceptance of the term denotes the ship or goods of an enemy, or in transit to an enemy, captured at sea, or in the territorial waters of one of the belligerents. Goods captured on land are not prize, but booty 0! war. The property in the prize vests in the Crown in accordance with the maxim—1’arta bello C8!l!¢)ll€€lP!(I1.ltC¢;; ‘Tao right attaches both Hindcase; £5 capture and recapture su ject in e a er case e unsupp e m

of -/us postliminii, or, its used in this relation, the right of the owner of property recaptured from the enemy, to have it returned formerly if the recapture had taken place before the property had been taken within the enemy’s territorggiinfra praesidia), and at present if less tlligl izlvveiiltyflfpgivi; hours have elap between the capture an recapture. y_‘ug 18

the right of recapture to salvage on recapture is usually one-eighth of the

« PreviousContinue »