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LONDON, MARCH 4, 1882.
IT IS WORTH WHILE to remark, in connection with the CURRENT TOPICS.
announcement that the Select Committee of the House of Lords have no intention of scrutinizing the exercise of the judicial
functions of the Land Court, that any examination of the comMR. JUSTICE CHITTY will, in future, take his seat in court each
Try will in future take his sent in court each missioners or sub-commissioners with this object would be illegal. day at 10.30, instead of 10 o'clock, as hitherto.
This follows from the case of Duke of Buccleuch v. Metropolitan
House of Lords that though an arbitrator may be asked what LORD JUSTICE KOLKER will sit with the Court of Appeal at passed before him in the arbitration, he cannot be asked what Westminster to the end of the present sittings.
passed in his own mind when exercising his discretionary powers on the matters submitted to him for consideration. And Baron
CLEASBY, in delivering his opinion in that case, said that “ with LORD JUSTICE BAGGALLAY was too ill to attend the Court of respect to the office of judges (as distinguished from arbitrators] Appeal at Lincoln's-inn on Monday last, and that court has it has been felt that there are grave objections to their conduct since sat with two judges only to hear interlocutory matters.
being made the subject of cross-examination and comment (to | which hardly any limit could be put) in relation to proceedings
before them; and as everything which they can properly prove MR. JUSTICE FRY has risen for a few days, and will not sit can be proved by others, the courts of law discountenance, and I again in court till next Thursday. Mr. Justice Kay, instead of think I may say prevent, them from being examined. But those intermitting his sittings at present, has announced his intention of objections do not apply to a person selected as arbitrator for the terminating the sittings of his court on Friday, the 31st inst., / particular occasion by the parties.” And it is to be observed four days before the commencement of the Easter Vacation.
That Lord CAIRNS in his judgment, remarked that, “as regards the reception of the evidence the line has been most properly and
accurately drawn by Mr. Baron CLEASBY." A NEW ORDER OF TRANSFER has been issued, which we print elsewhere, for the transfer of twenty causes from the list of ViceChancellor Hall to that of Mr. Justice Fry; twenty causes from
LORD CAIRNS' proposed supplement to the Conveyancing Act the list of Mr. Justice CHITTY to that of Mr. Justice FRY, and has been issued to the public. The reader will have noticed that sixty causes from the list of Mr. Justice CHITTY to that of Mr.
no small part of the objections urged by us against the Act of Justice Kay, for the purpose of trial or hearing only.
last year turned upon the inaccurate language in which it is drafted. Our objections to the new Bill are seldom or never con
fined to the language alone; we observe, indeed, that a good THE ADJOURNED MEETING of the Rule Committee of Judges was
ommittee of Judges was many alterations for the better have been made in its language. held on Wednesday in the Lord Chancellor's room at Westminster,
lor's room at Westminster, But its matter is generally such as to do credit to the discretion of to take into further consideration the Report of the Legal Proce- the Select Committee by whom its provisions were struck out dure Committee. The Lord Chancellor, the Lord Chief Justice,
last year. It seems to be pervaded by a desire to make purthe Master of the Rolls, Mr. Baron POLLOCK, Lord Justice
chasers safe at all costs : a sentiment which is highly laudable LINDLEY, Sir JAMES HANNEN, and Justices Fry and MANISTY
within due bounds, but which cannot be carried too far without were present.
offering dangerous facilities to rogues, who could desire nothing
better than that all purchasers from them should obtain an indefeasA PRACTICAL POINT of some importance to country solicitors ible title. Something of the same questionable policy appears in the has been noticed in the reports of two law societies recently proposal of section 2, that it shall be in the discretion of a solicitor published by us. It has been the practice in the country to (acting, of course, in good faith) to dispense with the investigaidentify persons signing a notice of dissolution of partnership by tion of a title which has been previously investigated and accepted a declaration bearing a half-crown stamp. In London, on the on behalf of a purchaser. If this provision should pass, other hand, notices of dissolutions of partnership for the London persons who by their own carelessness in investigation have Gazette are received without any such declaration where a London obtained a bad title will be greatly helped towards passing it on solicitor is the attesting witness. It has recently been arranged to a new purchaser, upon whom the loss, if any, will fall. It that where a country solicitor whose name appears in the Law List will be seen from the letters which have appeared in our columns is the attesting witness, a notice of dissolution for the Gazette will that, in the opinion of many members of the profession, the be received from the country without any declaration,
separate examination of married women, which the Bill proposes to abolish, is by no means a useless ceremony, and that it cannot
be abolished without offering dangerous facilities and temptations AT A MEETING of the Hull Law Society, held on February to marital bullying. It is difficult to regard any part of the Act 21, the following resolution was moved by Mr. Lowe, the with any feeling more cordial than doubt and hesitation. The president of the society, and seconded by Mr. SHACKLES : “ That language, as we have said, has been improved; but a great deal in the opinion of this society, the office of Registrar of Deeds for of room is left for further improvement. We propose to return the East Riding of Yorkshire (now rendered vacant by the death hereafter to a more detailed examination of the provisions of the of Mr. MAISTER) should be filled by the appointment of a Bill. member of the legal profession, who should pledge himself to attend personally to the duties of the office, and keep such THE APPEARANCE of two judges in the witness-box in the indexes as will render the search for deeds, &c., more simple and Phillimore case, suggests the consideration whether these learned expeditious than at present." The resolution was carried by a persons, and other persons whose time is especially valuable, very large majority. London practitioners will wish that the might not be allowed to give evidence on affidavit under ord. 37, latter part of the resolution could be enforced on the officers of r. 1, which empowers the court or a judge at any time, for sufficient the Middlesex Registry.
reason, and unless the production of the witness bę bona fide de
sired for cross-examination, to order that any particular fact or facts notes? The same remarks apply to acknowledgments of a liability may be proved by affidavit, or that the affidavit of any witness may to "answer for the debt of another person," within section 4 of the be read at the trial. Except as modified by this rule, it is clear law Statute of Frauds. It will be a consideration of some gravity if that any person, however considerable (except only the Sovereign), these and such like documents require to be stamped as promissory may be summoned by subpæna from Northumberland to Cornwall. notes in order to be admissible as evidence; but it is difficult to As an instance of the universality of the rule, Bentham asked, explain the ruling of Mr. Justice Kay upon any other hypothesis. “ Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor to be passing in the same coach while a chimney-sweeper and a barrow-woman were in dispute about a IT IS TO BE HOPED, but hardly to be expected, that the justice halfpenny worth of apples, and the chimney-sweeper and the barrow of the decision in Walker V. Matthews (30 W. R. 338) will woman were to think proper to call upon them for their evidence, commend itself to the rural mind. A cattle dealer bought in could they refuse it?" "No," he answers, “ most certainly not." | market overt two cows from a man who had stolen them. The And, in a note to a learned work on Evidence, we find the following
dealer sold the cows to a bona fide purchaser, who had no notice of curious story :-“ We remember a prosecution for blasphemy,
the felony. Section 100 of the Larceny Act, 1861, provides that in which the defendant, by way of showing the divided state of if any person guilty of felony in stealing any property shall be opinion on theological subjecte, actually subpoenaed the heads of convicted thereof, “in such case the property shall be restored to all the religious persuasions he could hear of, and when the day the owner or his representative," and the court, before whom any of trial arrived, these found themselves all shuffled together person is tried, shall have power to award writs of restitution for in the waiting-room--the Archbishop of Canterbury and the the property, or to order the restitution thereof in a summary Chief Rabbi being of the party.” With regard to the capacity manner. And it was decided in Scattergood v. Silvester (15 Q. B. of a judge to give evidence on matters not relating to his
506) that the effect of conviction under this Act is to re-vest judicial functions, it was at one time supposed that a judge the property in stolen goods in the original owner, notwithstandwas incapacitated by being named as a judge in the commission ing any intervening sale in market overt. The person from under which the court is sitting (7 Hen. 4. 41a), but this whom the cows were stolen traced them to the purchaser doctrine has long been exploded (R. y. Hacker, J. Kelynge, 12). It and demanded their restitution, but he refused to give is still a matter of doubt, however, whether a judge can give
them up. Some months after, the thief was convicted evidence in the very cause which he is trying, the better opinion of having stolen the cows, and the person from whom they being that he cannot. See the question discussed in Taylor on
were stolen, after again demanding them from the purchaser, Evidence, s. 1244.
brought an action against him to recover them. The purchaser counter-claimed for the cost of their keep while they were in his
possession, up to the time of the conviction of the thief, on the A DECISION was pronounced last week by Mr. Justice Kay
ground that until that time the property in them did not vest in which will, we believe, be found to enlarge the idea of our readers
the plaintiff. But he was met by Mr. Justice LOPES with the as to what, for the purposes of the Stamp Act, constitutes a
observation that if the property in the cows was in him, he could promissory note. The facts of the case (Hodges v. Newport), so
not recover the expenses of keeping his own property; still less far as they are material, were as follows. The defendant was the
if he wąs keeping them wrongfully. And the court gave judgexecutor of a deceased person, who had, together with the plain
ment for the plaintiff on the counter-claim. tiff, given a joint promissory note for £350 to a banker. The whole of the money was paid at maturity by the plaintiff, who now claimed to receive credit for half the amount in taking On Saturday and Monday the appeals in the cases of The Law Society of the accounts between himself and the estate of the deceased joint United K
United Kingdom v. Shaw and another, and The Law Society of the United
Kingdom v. Waterlow Brothers & Layton, were heard by the Court of Appeal. acceptor of the note. In order to prove that the joint acceptor
The actions were for penalties against firms of law stationers carrying on business had not been a mere surety for the plaintiff, but had been, as in London, it being alleged that the defendants acted as proctors in the Probato, between himself and the plaintiff, liable to pay half the amount of Divorce, and Admiralty Division without being duly qualified within the the note, the plaintiff at the trial tendered in evidence a document. Solicitors Act, 1860 (23 & 24 Vict. c. 127), s. 26. The nature of the acting purporting to be signed by the deceased, and worded as follows:
complained of consisted in the defendante, by themselves, or their servants,
Todging and registering the papers required for probate of wills at Somerset “ I agree to pay the sum of £175, being half the sums of the joirt
House, applying for and obtaining the grant of probate, answering inquiries bill in Stuckey Bank, my due [sic].-(Signed) SAMUEL NEW- made by the officials in regard to such applications for a grant of probate, and PORT." This document, 'supposing it to be a promissory note, was discbarging such duties in tbe name of solicitors or proctors. not properly stamped; and the Stamp Act does not permit an
The only diference in the facts of the two cases was that
tbe defendants in the first case acted for, and in inland promissory note to be stamped after execution, even on
the name of
solicitors practising in London; the defendants in the second payment of a penalty ; so that upon that hypothesis the document case acted for, and in the name of, solicitors practising in the country. The was excluded from being put in evidence. Mr. Justice Kay, actions were tri-d together before Mr. Justice Grove in Middlesex; the jury relying upon the language of the Stamp Act. 1870, s. 49, sub-were discharged; by consent judgment was entered for the plaintiffs for £50, section (1), held that the document was a promissory note within
hin being the amount of one penalty, and execution was stayed to enable the
opinion of the Court of Appeal to be takeä by the defendants. the meaning of that section.
The court The section upon which the learned reserved judgment. judge relied enacts that “the term promissory note means and On Wednesday afternoon, in Lincoln's-inn Hall, Mr. Justice Chitty pre includes any document or writing (except a bank-note) containing sided over the annual distribution of prizes to the Inns of Court Rifle a promise to pay any sum of money." These words are no doubt Volunteers. In the absence of the commanding officer, Lieutenant-Colonel very wide, and it would seem that a document may be a
Bulwer, Q.C., M.P., Major Russell commanded the battalion, which was promissory note for the purposes of the Stamp Act, though
drawn up in the ball, and received Mr. Justice Chitty (late major in the corps)
with a military salote. In the course of his remarks, Mr. Justice Chitty it is by no means obviously a promissory note for referred to the eminent men who had preceded him in the position he that other purposes and in the ordinary sense of the word. day occupied in regard to this ceremony, and said he felt that the honour of Sir John BYLEs, it will be remembered, gives the following following great lawyers, politicians, and soldiers in that presidential chair was definition :—“A promissory note ... is an absolute promise
due to his having served for more than seventeen years in the ranks of the in writing, signed, but not sealed, to pay a specified sum at a time fissional à vocations and other duties to retire from active volunteering, and
regiment. He expressed his deep regret that he had been obliged by pro. therein limited, or on demand, or at sight to a person therein then, to show that the duties of a volunteer were not incompatible with the named or designated, or to his order, or to the bearer." The attainment of the bighest professional honourg, he enumerated the many decision tends to throw uncertainty over some questions which eminent judges who had been active members of the Ions of Court Voluuteer have not hitherto been treated in practice as doubtful. A mere
Corps, adding that these examples would seem to show that the members of
the regiment migbt be regarded as carrying the judge's wig in their knapsack.. acknowledgment intended to take a debt out of the Statute of He urged the younger members of the profession to enter the ranke, and Limitations would be very likely to use the word “agree," and assured them, from his own experience, of the social advantages of being would certainly contemplate the future payment of a money claim.
members of the cerne. In proof of the view that volunteering gave men the Can it be that these documents, even if containing a reference to
power to work k instanced the fact that the commanding officer was one of
ber Majesty's co 20 sel, was editor of Law Reports, was a member of Parlia. a preceding promissory note, require to be stamped as promissory ment, and yet fand time to be frequently with his regiment,
pointed to more papers, which he said represented the rest of his MISREPRESENTATION.
business. Hurd thereupon, without making any further investigaThe case of Redgrave v. Hurd (30 W.R. 251) is an instance of a
tion, signed an agreement for the purchase of the house, and curious fact about our law-that often the most elementary points
entered into partnership with Redgrave. It was alleged that are those which are found to be left in the greatest doubt. Questions
the practice was worthless, and Hurd refused to complete. Redas to the rescission of contracts on the ground of misrepresentation
grave then brought an action for specific performance, and Hurd are of constant occurrence, yet the true principles upon which
counter-claimed for rescission of the contract. Mr. Justice Fry they must be decided have remained in some doubt even after
decided in favour of the plaintiff, and the Court of Appeal much discussion in the House of Lords. The claim for rescission
reversed that decision. The Master of the Rolls pointed out that is often the return blow to an attack for specific performance,
Mr. Justice Fry was wrong, not only in holding that the defendand yet in Redgrave v. Hurd the eminent judge who has
ant's negligence disentitled him to relief, but also in coming to made the law as to specific performance his own province
the conclusion that he did not rely upon the plaintiff's statements. is found going wrong as to misrepresentation. The Master
This was not a mere mistake upon the evidence, but in law. of the Rolls said there was a proposition of law “not quite
“ When a person makes a material representation to another to accurately stated " in Mr. Justice Fry's judgment; and
induce him to enter into a contract, and the other enters into that further on he observed that some of the learned judge's
contract, it is not sufficient to say that the defendant does not remarks were inaccurate in law and not borne out by the case to
prove he entered into the contract relying upon it, because, if it which he referred. The proposition which Mr. Justice Fry had
is a material representation calculated to induce him to enter into stated was that if a man has been induced to enter into a contract
the contract, that is a conclusion at which you arrive by inference. by a false representation, it is a good answer to him to say that he
You must show that he abandoned it-either that he had knowhad the means of finding out the truth for himself and did not
ledge of the facts contrary to the representation, or that he did choose to avail himself of it, or only inquired into it carelessly and
somehow or other state explicitly that he did not rely on the inefficiently. This was not the doctrine of equity, and it is not
representation." the law now. The law is that, if a man has induced another to
| The counter-claim also asked for damages on the ground of enter into a contract by a false representation, he shall not be deceit, but this claim failed because the defendant did not prove allowed to profit by his wrong. It makes no difference whether the plaintiff's knowledge that his statements were untrue, nor the man knew that the representation was false or not; if it was plead the allegations in sufficient detail to found an action for in fact untrue he is not to keep the benefit he has got by the in- | deceit. correct representation. Mr. Justice Fry's statement breaks The case upon which Mr. Justice Fry relied was the well-known down by reason of the first part of it. It is often a good case of Attwood v. Small (6 Cl. & F. 232), where the law lords were answer to an action for rescission on the ground of misrepresentation not agreed. It has often been pointed out that the dicta in that to prove that the plaintiff had the means given him of discover- case are not very consistent with one another. The Master of the ing the truth; for it may be that the contract was not induced by Rolls has now made a very minute examination of the speeches of the representation, but that the plaintiff acted on his own judg the three lords who were in the majority, and has undoubtedly set ment, and not on the defendant's representations. But Mr. at rest any doubts which the case may have raised. The grounds Justice Fry assumes that the contract was induced by the repre of the decision were, he says, “ po fraud, actual knowledge of the sentation, and that being so, the question at once turns not so facts before the contract, no reliance upon the misrepresentation. much upon the position of the defrauded as upon that of the In no way, as it appears to me, does the real decision, or do the defrauder. The law will not countenance him in getting a benefit real grounds of decision, in the case of Attwood v. Small support by having misled the other party. That, as the Master of the the proposition that it is a good defence to an action for rescission Rolls pointed out, is good morality as well as good law. Whether of a contract on the ground of fraud to say that the man who the mistake was made unwittingly, or whether it was a fraud comes to set aside the contract inquired to a certain extent, but (using the word in its ordinary sense), makes no difference. So did it carelessly and inefficiently, and, therefore, did not observe soon as the representation is shown to have been incorrect, it is a the fraud, and is thereby prevented from upsetting the contract.” moral delinquency for a man to try to keep a beneficial contract | Upon this there is one thing to be observed. The Master of the which he has got by a statement which he now knows to be false. Of Rolls uses the word “fraud” when “incorrect representation" course, the use of the word “fraud” had led to many misunder- would have been more accurate. In the earlier part of his judgstandings upon this subject. The word has been used in equity- ment he had in effect shown in what sense he employed the term unfortunately, no doubt-as a convenient term for something “ fraud.” Mr. Justice Fry in his book on Specific Performance which it rather closely resembles, but is not. The law is, perhaps, (2nd ed., p. 282), says, “ X misrepresentation may or may not be not a very stern moralist. In civil cases it will only act between a fraud. Where it is false to the knowledge of the person making parties. Of some disputes it will take no heed. It will not hear it, it is a fraud. When its falsity was not known, it may have the parties, but, so as to speak, drives them from the judg- been carelessly made, or even in perfect innocence: and yet the ment seat. Immoral contracts and betting transactions are obviou fact that the statement was false may render it unconscionable in nstances. But when once the law takes cognizance of a dispute, the person who made the statement to enforce the contract which it confines its attention to the questions t.etween the parties. It it produced.” For the purposes of resisting specific performance will not punish a man simply because he has been fraudulent, or obtaining rescission of a contract on the ground of misreprebut asks whether the fraud has hurt the other party. Therefore, sentation, it is immaterial whether the representation was made by the first question in cases of misrepresentation is not whether a person who believed it to be true, or one who did not believe it it was fraudulent, but whether it induced the contract. If it did, to be true. (See per Lord Cairns in The Reese River Silver Mining the misrepresentation may, without much straining of language, Company's case, L. R. 2 Ch. 604.) Mr. Justice Fry says (loc. cit.) be called a fraud. The Master of the Rolls, in Redgrave v. Hurd, that "somewhat less than the ingredients requisite” to ground an has shown very clearly how it really would become a fraud if action for rescission of a contract“ will suffice to prevent the active equity did not step in and prevent it from going further.
interference of the court in specific performance.” This appears In this case Redgrave, an "elderly solicitor," advertised in a to be hardly correct. The principle of equity seems to be the legal journal that he had a moderate practice with extensive con same in both cases where there has been an incorrect representanections in a populous town, and that being about to retire he tion dans locum contractui. The principle at common law in would, in the first instance, take into partnership an efficient actions for rescission was different. " There were cases," says the lawyer, who would not object to purchase his suburban residence Master of the Rolls, “ in which, even at common law, you could for £1,600. Hurd, who was a solicitor, answered the advertise- rescind a contract, although you could not show that the man ment, and the advertiser, in personal interviews, represented his knew the statement or the representation to be false." But the business as bringing in £300 a year. Redgrave kept no regular principles upon which the common law acted have now given way books, but he showed Hurd a number of papers, from which it to that of equity. When damages are claimed for deceit the appeared that the business brought in about £200 a year, and on common law principles still apply, and to ground an action of Hurd's asking how the remaining £100 was made up, Redgrave deceit--that is to say, to get damages-much more must be proved than where the object is to resist specific performance or to have would be excluded from it. Secondly, does “railway” include the contract rescinded.
“ tramway?” We think not. A tramway we take to have a The error into which Mr. Justice Fry fell in Redgrave v. Hurd | well-defined meaning separate from that of a railway, the -inadvertently, no doubt, as his chapters on misrepresentation distinction being that the owner of a railway owns the land over and fraud abundantly show—was in confounding the case of a which the rails run, whereas the owner of a tramway does not. representation where the person induced to contract has means | If tramway was to be included, it would have been expressly of investigating with that where the investigation and not the mentioned. representation has induced the contract. If the representation The principal legal points in the county court cases have arisen really induced the contract, the question as to the means of upon the important sections as to notice. These are sections 4 investigation does not matter at all. If there was an investigation, and 7, of which an abstract is as follows:and it was relied on, then in fact the question of representation An action is not maiotainable unless written notice giving the name and does not arise. The facts in cases which give rise to these address of the party injured, with particulars, be given within six weeks and questions are generally similar. There is some representation to
the action is commenced within six months, or in case of death, within twelve
months. In case of death the want of notice is no bar is the judge be of bring the parties together, and there is usually some sort of inquiry ;
opinion there was reasonable excuse for such want of notice. No notice is to be what the court has to decide is, Which was it that induced the
deemed invalid by reason of any defect therein, uoless the judge be of opinion contract ?
that the defendant is prejudiced by the defect, and that the defect was (sic in the Act) for the purpose of mislearing. The notice may be served by post by
a registered letter. THE WORKING OF THE EMPLOYERS'
Upon these sections we find from Mr. Ruegg's appendix that LIABILITY ACT.
in the Bow County Court service by an unregistered letter has been
held good; that in the Oldham County Court the pregnancy of a The case of Moyle v. Jenkins (L. R. 8 Q. B. D. 116), in which
widow " who was so excited in mind that her medical man ordered it was decided by Grove, Lopes, and Bowen, JJ., that the notice
her not to be consulted on the subject” has been held a reasonable which is a condition precedent to suing under thc Employers'
excuse for not giving notice in time; and that at Cockermouth, Liability Act, and which must be given within six weeks from the
where a formal notice had not been given until ten weeks, but occurrence complained of, must be in writing, is the only case
within fifteen days the plaintiff wrote to defendants' manager, upon the construction of the Act which has yet reached the High
stating that he should hold the company liable, and claiming com. Court; but the useful work of Mr. Ruegg contains an abstract of
pensation, “it was held by the judge that this notice was thirteen cases from April to October, 1881, which have been
sufficient.” To the decisions at Bow and Oldham no exception decided in the county courts. We propose shortly to consider
can be taken. Both of the questions were purely questions for such legal points as arose in these cases, and to offer a few remarks
the judge, and it is well to point out that far more liberal views of on some other points on the Act.
the Act might have been taken without the possibility of being The following is a brief abstract of the principal sections of the
upset. Where an Act of Parliament uses the words “reasonable," Act:
“satisfied,” “ in the opinion of," and so forth, in connection with A worka an, upleos he knew of the defect or negligence which caused bis the decision of a judge upon a point, it clearly constitutes that injury, and did not give information of it, or knew that his employer or a |
judge an absolute arbiter upon that point. The Cockermouth superior was aware of it, has the same right of compensation as if he had not been in the service of the employer for personal injury, caused either
decision seems clearly wrong, or, as Mr. Ruegg more politely puts (1) By defect in machinery arising from, or not remedied by, the negligence it, “ questionable," and may be contrasted with the more accurate of the employer, or some person to whom the supervision of the machinery is construction of the Act in the Manchester court, where the judge intrusted :(2) By the degligence of any person in the service of the employer having
nonsuited a plaintiff who proceeded upon a notice in these words, the sole or principal duty of superiotendence, and not ordinarily engaged in
“ The boy, William Tarley, who was hurt at your mill on the manual labour :
22nd of February, will require a considerable sum of compensation. (3) By the negligence of any person in the service, &c., to whose orders the Do you think we can settle the matter out of court, or must we workman was bound to conform :
bring an action ?" This notice, which is not very dissimilar to (4) By the act or omission of any person in the service, &r., in obedi. enco to bye-laws, not being bye-laws sanctioned by a Government department
that which was admitted to be incorrect in Moyle v. Jenkins, if a under the authority of Parliament, if the injury resulted from some impropriety
written notice was requisite, failed because the Legislature, using therein :- or
negative words, says in section 4 that the action shall not be (5) By the negligence of any person in the service, &c., who has the charga
maintainable unless, &c., and, as the court has held in Moyle v. of any“ signal points, locomotive engine, or train upon a railway.”
Jenkins, the words of section 7, which prescribe the form of notice, It is material to observe at the outset that these enactments do | are to be read into section 4. not abolish the doctrine of “common employment.” A fellow
A question which may, perhaps, arise is whether the “informaservant suing a fellow-servant must still fail to recover unless he
tion" of defects and negligence, for failing to give which, under can bring himself within the words of one of the exceptions which
section 2 the workman forfeits his right to compensation, must the statute ingrafts upon the rule of Priestley y. Fowler (3 M. & also be in writing. Moyle v. Jenkins leaves the point untouched, W. 1), that the master is not liable.
but it may be contended that that decision impliedly decides it. No question appears yet to have arisen upon the meaning of the The words in section 7 are: “ Notice in respect of an injury five sub-sections above abstracted. The difficult questions which under this Act shall give the name and address, &c." In one sense may arise on what is “a principal duty of superintendence" and the information is notice in respect of an injury.” But we what is being “ ordinarily engaged in manual labour ” would seem cannot think that so extended an application of section 7 will be to be questions of fact rather than of law, and so would the still given by the High Court. The information is to be given before more difficult question as to whether there was “impropriety” in the injury can possibly happen : the notice, of course, can only be any particular bye-law. But it is clear that such questions can given after it has happened. On the other hand, it is remarkable never be satisfactorily determined by a jury, and it is easy to that the only other notice in respect of an injury to which section imagine a case where à county court judge may be destitute of the 7 can apply is the notice under section 4. proper special knowledge on which to form an opinion. It is to be It is observed by Mr. Ruegg that “more than one application hoped, therefore, that the assistance of assessors, as provided for to remove an action under the Act by certiorari to the High by section 6 of the Act, will be frequently invoked.
Court on account of the largeness of the amount claimed has been The 5th sub-section gives rise to two questions. Is the ex refused." The applications for removal being made, according to pression “ train ” confined to a train properly. so called, a com the ordinary practice, in chambers, no report of the applications pleted train in motion, or will it also apply to any line of carriages was, of course, obtainable ; but we are somewhat surprised that or trucks which may be got together in the course of railway no attempt has been made to appeal from the refusals to remove. work? We incline to the more inclusive meaning ; but the The sections of the County Court Act (Act of 1846, s. 90; Act of question is not free from doubt. If “ train " is to be read strictly, 1856, s. 38), no doubt make the removal a matter of discretion, all shunting operations, which are clearly within the mischief of and the High Court would, no doubt, be extremely reluctant to the Act (for what fellowship has a shunter with a platelayer?), interfere with that discretion. Still it seems equally clear that
both the removal and the refusal to remove may be appealed
ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN. against to a divisional court, and to the Court of Appeal (see
[To the Editor of the Solicitors' Journal.] section 19 of the Judicature Act of 1873), and even to the House of Lords (see section 3 of the Appellate Jurisdiction Act, 1876),
Sir,- Referring to a letter under this head in your issue of the 25th ult.,
from a commissioner, perhaps you will allow me to express my entire in succession. Perhaps the reason for acquiescing in the decision
concurrence with what he has said on the subject of abolishing these of the judge at chambers is, that the parties are content with the
examinations. possibilities of an appeal. But is it so certain that an appeal lies ? In the course of my experience, which is rather a long one, I have had The Act itself is silent as to appeal, but express as to certiorari. many instances of their practical utility, one of which, with your perIf an appeal lies, it must come from the County Court Acts. But mission, I will relate. might it not be argued, that by expressing certiorari, which also
I was once called in with another commissioner, who was rather would have come from the County Court Acts if appeal would,
interested in the transaction, to take an examination. On proceeding to and looking also to the rule that an appeal cannot be given by
put the usual question whether she acted voluntarily and without com
pulsion, the lady said, “I suppose I must.” “No," I replied, “not if implication, the right of appeal does not exist ? We think, on the
you are unwilling; it is our duty to ascertain whether you are willing." whole, that the right exists, but we cannot help suspecting that | After a little hesitation she said, “ Well, if he performs his agreement, some legal doubt upon the subject may account for the fact that I have no objection.” I then informed her we should have to know of the three cases in which Mr. Ruegg tells us that an appeal was what the agreement was, and see it carried out. My colleague concurintended, none of them has, as yet, been heard of. In Moyle v. ring, we sent for the husband ; before he arrived, however, the wife said, Jenkins the respondent succeeded, so that it was not necessary to
“ Shan't I catch it for this ;” and when the gentleman came into the raise the point.
room he certainly did look thunder and lightning. He had married the
lady for her property solely, which he wanted to get under his own con. The only other question which occurs to us upon the Act is the
trol. The business was then postponed, eventually deeds were prepared rather grave one whether the County Court Rules which have
| with which the lady was satisfied, and then she gave her consent. been made under the Act are not ultrà vires. The 6th section
ANOTHER COMMISSIONER. allows rules to be made “for the purpose of regulating the conditions (sic) and mode of appointment” of assessors, “and all matters of procedure relating to their duties, and also for the
THE LAW SOCIETY'S PROCEDURE MEETING. purpose of consolidating" actions, “ and otherwise preventing
[To the Editor of the Solicitors' Journal.] multiplicity of such actions.” The rules (order 39b of the County
Sir,--At the meeting of the Incorporated Law Society, last Wednesday, Court Rules of 1880) provide (inter alia) for the time within
I seconded an amendment “that that portion of the report which said which a summons is to be delivered to the bailiff, and within
that the ordinary mode of trial should be by a judge without a jury which a jury must be demanded. These rules are clearly not should not be agreed to." within the particular words of section 7 under which they are Although the importance of this question of detail demanded lengthmade, and there are no general words. It will be contended, of ened discussion, I made my remarks very short, as it was evident that course, that they are within the general words of section 32 of the
the meeting was impatient of any discussion on the subject. The meeting County Court Act, 1856, and there is some reason for this conten- |
could not forget that it was their own committee; the practical and
literary ability shown in the report, and the decided support accorded to tion. But we greatly doubt whether the Legislature intended that
it by the president and council. There was an evident feeling that the procedure in actions under the Employers' Liability Act
sufficient discussion had taken place in committee, and that the report should differ from that in another action, except as indicated in
should be adopted as a whole. Still, as it was evident that the report the Act itself. We commend this and other doubtful points to was that of the majority of the committee only, the view of the minority the notice of Mr. Burt, who has, we observe, given notice of his should have received more attention at the meeting than was the case ; intention to introduce an amending Bill.
and I believe at a lator date it will be a matter of regret that the discussion on the points of difference was so summarily disposed of.
Take, for instance, resolution 12 of the Chancellor's Committee: “The mode of trial shall be by a judge without a jury, but in the summons
for directions on the application of either party an order shall be made CORRESPONDENCE.
that the cause be tried by a jury if it shall appear that the questions
involved can conveniently be so tried. Provided always that in the STAMPING DEEDS AT THE ROYAL COURTS.
following cases the right of either party to a trial by jury shall be
absolate-libel, slander, seduction, false imprisonment, malicious prose[To the Editor of the Solicitors' Journal.]
cution, breach of promise of marriage.” Sir, Among the recent improvements at the Royal Courts of Justice What is the meaning of this rule? I can only read it as followsprovided for the convenience of the profession there is a department for viz., that the exceptions, contrary to most rules, are to be larger than the the stamping of deeds.
rule itself, and that, although the method of trial was to be by a judge, Under existing arrangements documents can be stamped with any | the majority of cases are intended, as heretofore, practically to be tried of the following sums-viz., 1s., 2s., 5s., 108., £1, and £5; but not with by a judge and jury whenever they could be conveniently so tried. either 28. 60. or 6d. ; consequently, to stamp a document with either of It may be that the judges, the bar, solicitors, and litigants may be per. these two latter amounts it is still necessary to go to Somerset House. suaded to accept the silent revolution of our own committee by which
Could not the authorities be prevailed upon to cure this apparent defect trial by jury is to be nearly abolished, and that the common law courts by providing an apparatus for both these amounts, and so enable stamp are to be assimilated to the dull and insipid, and, by way of comparison, ing for any sum, from 6d. to £5, to be “done on the premises”? I have unsatisfactory, trials prevalent in the Chancery Division. no doubt that if attention is drawn to this omission the defect will be 1 The arguments founded on county court experience, by reason of the Temedied.
J. V. small amounts involved, are inapplicable, and besides, even in the county
court, both plaintiff and defendant have an absolute right to trial by
jury. TENDERS INVITED FOR COSTS.
With regard to the reservations made by the rule, they are singularly [To the Editor of the Solicitors' Journal.]
insufficient. For instance, in what respect should a breach of promise of Sir,-I send you the following advertisement, which appeared in a
marriage be tried by a jury, and not an action for wrongful dismissal, recent issue of a widely-circulated paper in the North of England :
negligence, tort, including all actions for damages in respect of acci. "To Solicitors.-Tenders are invited for the looking into of Title to
dents. Freehold Property and Transfer Deed, and also Mortgage. Price paid
The fact is, that in some quarters an opinion is already expressed that for property, £5,825; amount of mortgage, £4,000, The lowest offer
trial by jury is to be discouraged, and there is too much reason to fear will have preference; and secresy observed.-Apply in writing to
that, unless the right to a jury be made absolute, the judges may in a * Box - Office.”
short time refuse a jury on the alleged principle of the rule.
I concede that there is some considerable difficulty in framing the I think the advertisement will be considered as unique. Perhaps we rule to meet the just requirements of all branches of the profession, shall see next the medical profession invited to tender for the amputation litigants, and the public generally. I am afraid it may seem presumpof a leg or for the cure of some long-standing rheumatic affection. The tuous on my part to repeat that the rule should be larger than the ex. “ secreay” to be observed will probably prevent' us from ever knowing ceptions, but I hope that a large number of the profession would prefer the extent to which “ Box — " will be bitten. The advertisement that the rule should be: “That the ordinary method of trial shall be by suggests painful reflections as to what will be done when the scale comes judge and jury as heretofore, but juries only to be granted on applicainto operation,
tion of either party, and with power for the judge, subject to appeal, to