CURRENT TOPICS.

IT IS UNDERSTOOD that the Rule Committee of Judges completed their consideration of the Report of the Procedure Committee at their meeting on Wednesday last.

LORD JUSTICE BAGGALLAY is suffering from a severe attack of gout, and it is doubtful whether his lordship will be able to resume his sittings in the Court of Appeal till after Easter.

IT HAS BEEN ARRANGED that, in the absence of Lord Justice BAGGALLAY, Sir JAMES HANNEN will sit with the Court of Appeal at Lincoln's-inn on two days in each week. On the other four days the court will take interlocutory appeals.

THE HOPE EXPRESSED by Mr. SHAW-LEFEVRE in the House of Commons on Thursday last that the courts in the new building of the Royal Courts of Justice would be formally opened about Midsummer next, must appear to anyone who has recently inspected the interior of the building to be somewhat sanguine. It is true that the central hall is in a fair way towards completion, the Dennett flooring being now filled in. It will, however, take some time to complete the ornamental carving and to lay down the pavement. The courts are roofed in, and in most of them the ceiling is complete, but the fittings are not more advanced than they were three months ago. The general impression seems to be that the long vacation is likely to arrive before the courts are ready for occupation. We believe that a somewhat imposing opening ceremony is contemplated.

THE LAW as to attacks upon the Sovereign is very severe and precise. It is contained in two statutes, the first dealing with attempts to kill or hurt, the second with attempts to intimidate. The first statute, 36 Geo. 3, c. 7, made perpetual by 57 Geo. 3, c. 6, makes it treason to " compass, imagine, devise, or intend death, or any bodily harm tending to death"; the punishment for treason (mitigated of its attendant horrors by 54 Geo. 3, c. 146, and 33 & 34 Vict. c. 23, s. 31) being death. The second statute, 5 & 6 Vict. c. 51, makes it a high misdemeanor "to discharge, or attempt to discharge, or point, aim, or present at or near the person of the Queen any gun, pistol, or any other description of firearms," whether loaded or not, "with intent to alarm her Majesty," the punishment to which the offender is liable being penal servitude for seven years, or imprisonment for three years, with the additional liability "to be publicly or privately whipped as often and in such manner and form as the court shall order and direct, not exceeding thrice." A subsequent statute, 25 Vict. c. 18, provides that "no offender shall be whipped more than once for the same offence"; but it may be doubted whether this provision applies generally, or is restricted to offences punishable by summary conviction only.

IT HAS BEEN SUGGESTED that some stringent measures are necessary to check the growing use of revolvers. If it should be determined to legislate in this direction, a very simple amendment of the Gun License Act, 1870 (33 & 34 Vict. c. 57), would probably effect all that could be reasonably desired. This Act, which applies to "a firearm of any description, and an air-gun, or

any other kind of gun from which any shot, bullet, or other missile can be discharged," imposes a duty of ten shillings upon every person using or carrying a gun, the penalty for using or carrying a gun without license being ten pounds. It is probable that the statute is very much evaded. Even where it is not evaded, the rule, no doubt, is to buy the gun first, and to take out the license afterwards. All things considered, we do not see any very great objection to making it a condition precedent to obtaining a gun that the license should first be produced. This object could in a great measure be attained by making it penal to sell a gun without identifying buyers would be increased, and impecunious buyers a production by the buyer of a license. Thus the means of might be forced, in some instances, to abandon the intention of purchasing altogether.

THE POPULAR IDEA that JUMBO was going to be made a ward of court, and the legal notion that since no express power to sell animals is given by the charter of the Zoological Society, the elephant could not be sold, were dispelled by the decision of Mr. Justice CHITTY on Wednesday. The doctrine of acts done ultrà vires has never been put so high as this. The true proposition is that the society cannot do anything which its constitution does not expressly or impliedly warrant. According to the learned judge, and we think also according to common sense, a power of selling off dangerous or expensive animals must be implied as incidental to the power of management vested in the council. The council ratified the sale of JUMBO; hence there was an end of the case. The Master of the Rolls, some years ago, refused to grant a mandatory injunction to compel the performance of a farming covenant, on the ground that the court could not take upon itself the superintendence of farming operations throughout the country, and Mr. Justice CHITTY has now, with equal decisiveness, declined to undertake the management of menageries. The attempt to apply to the case the doctrine that persons acting in a semi-judicial capacity, such as the committee of a club considering the question of the expulsion of a member, must not exercise their discretion contrary to natural justice-that is to say, without hearing the member-was, to speak mildly, more courageous than complimentary to the understanding of the court.

SINCE THE ACQUISITION of the inland telegraphs by the Post Office there have from time to time been discussions, not without Postmaster-General to refuse to produce a telegram in evidence some divergencies of judicial opinion, as to the right of the Most of the preafter being served with a subpœna to do so. removed by the observations made last week by Sir JAMES valent uncertainty upon this subject will probably have been HANNEN in the Palliser divorce case. The petitioner desired to give evidence of the contents of a telegram which had been sent by the co-respondent to the respondent, and the representative of the Post Office, who attended upon a subpoena duces tecum, stated that all original telegrams were treated by the department as privileged communications, and declined to produce the telegram asked for unless Sir J. HANNEN, thereexpressly ordered to do so by the court. upon directed its production, and expressed a hope that the Post Office would in future give no trouble in such cases. He laid it down that "there is no privilege in courts of justice for private documents which pass through the Post Office," except where," in the opinion of the proper authority," it would be " inexpedient in the public interest to produce them. These observations, while fully recognizing the well-established right of the head of a Government department to withhold information or documents the disclosure of which would, in his opinion, be detrimental to the publie interest, seem to give the Postmaster-General, in the

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was no

CASE of Graff v. Evans decides that there is no obligation on the committee of a club of which the members are proprietors to take out a license under the Licensing Acts. The question turned upon section 3 of the Licensing Act, 1872 (35 & 36 Vict. c. 94), which enacts that "no person shall sell or expose for sale by retail any intoxicating liquor without being duly licensed to sell the same," and the court (FIELD, J., and HUDDLESTON, B.) held that as the stock of liquor, though legally vested in trustees for purposes of convenience, was really and equitably the property of the members, sale to a member "sale "" within this section, although the price paid considerably exceeded the cost price, by reason of an addition thereto to provide for the expense of warehousing, &c., which addition went to the general purposes of the club. Curiously enough, the particular offence complained of consisted in a supply to a member for his own use at home, so that the license required, if any, would have been a license to sell the particular liquor supplied for consumption off the premises where sold. But HUDDLESTON, B., was careful to point out that this circumstance did not affect his decision in the least, and it is clear that the law is the same whether the liquor sold be consumed on the club premises or elsewhere, so long as it is supplied to a member. There was a finding in fact by the magistrate (Mr. D'EYNCOURT, who had, however, convicted the manager) that the club was a bona fide club, so that the court was relieved from the consideration of any such difficult questions as might arise in the case of a club having terms of admission so easy as to be to all intents and purposes a public-house, or, to use the statutory term, an "inn, alehouse, or victualling house." And it is very material to point out that the case is by no means an authority upon which the proprietors of proprietary clubs, in which ownership and membership are distinct, may safely continue their business without taking out licenses. The immunity of these gentlemen depends upon whether the courts would take a strict view of the Licensing Acts or not. They are clearly within the letter of section 3, which prohibits a sale without license, for they sell, and they have no license. But we are inclined to think that if their terms of admission were sufficiently exclusive-a question which seems to be one of fact-a court would hold that they required no license, on the ground that the Licensing Acts are concerned with places of public resort ouly, whereas it is the essence of a club, properly so called, that it should be nothing of the kind. But the question is a difficult one, and must inevitably arise for judicial decision before long. As an argument in favour of a license being required, we may mention that it was stated in evidence before the Select Committee on Public Houses, in 1854, that the excise license, at any rate, ought to be taken out by "all the proprietary clubs in St. James'-street." It is clear law, however, that where an excise license is required for the sale of intoxicating liquor to be drunk on the premises where sold, there a corresponding license from justices of the peace is required also (6 Geo. 4, c. 81, s. 13; Wine and Beerhouse Act, 1869, s. 4; Licensing Act, 1872, s. 74).

THE MUNICIPAL CORPORATIONS BILL, which is prepared and brought in by Mr. HIBBERT and Sir WILLIAM HARCOURT, is, as we learn from a useful explanatory note, "as far as practicable, a pure consolidation Bill.” It contains 258 clauses, nine schedules, and sixteen forms. It repeals "generally" forty-three prior statutes from the Municipal Corporations Act, 1835, to the Parliamentary and Municipal Registration Act, 1878, this latter and eleven other statutes being partially eliminated, and the remaining thirty-one wholly swept away. It repeals," only as to boroughs within" its scope, twenty-six statutes from 3 Ed. 1, c. 6, "in part," to the Town Council and Local Boards Act, 1880, which it repeals entirely. "Some slight alterations are proposed by the Bill of matters, either of mere language or comparatively unimportant detail." From the samples given of these alterations it seems that they merely clear up doubts, supply omissions, or substitute what are considered to be more, for less, convenient

to assist the recorder is to be called "assistant recorder," instead of assistant barrister, and the room in which borough justices sit is to be called "justices' room," instead of " police office." We are told, too, that "the office of ward assessor is abolished by the Ballot Act, 1872, and, accordingly, would revive on the expiration of that Act, but it has been assumed in the Bill that the abolition was intended to be permanent." On this point, however, the Bill is not quite in keeping with the promise of the note, for we are presented, in part 4 of schedule 3, with a list of ten "enactments which are to revive on the expiration of the Ballot Act."

THE STATEMENT by Mr. Justice KAY on Wednesday last, in the case of Williams v. Williams, that a man could not dispose, by will or any other instrument, of his own body, was not quite accurate. There is at least one case in which a man may deal with his mortal remains. The Anatomy Act (2 & 3 Will. 4, c. 75), s. 8, provides that "if any person, either in writing at any time during his life, or verbally in the presence of two or more witnesses during the illness whereof he died, shall direct that his body, after death, be examined anatomically, or shall nominate any party by this Act authorized to examine bodies anatomically to make such examination, and if, before the burial of the body of such person, such direction or nomination shall be made known to the party having lawful possession of the dead body, then such last-mentioned party shall direct such examination to be made, unless the deceased person's surviving husband or wife or nearest known relative shall require the body to be

interred without such examination."

It

RIGHT TO INSURANCE MONEY OF PREMISES CONTRACTED TO BE SOLD. THE case of Rayner v. Preston (29 W. R. 547, L. R. 18 Ch. D. 1) which we briefly discussed in its practical aspects at the time of its decision, deserves a more careful consideration. raised a very nice point with regard to the law of vendor and purchaser, which unfortunately led to a difference of opinion in the Court of Appeal. The Master of the Rolls in the court below, and Cotton and Brett, L.JJ., in the Court of Appeal, thought one way, and James, L.J., the other. The point is one of some importance, and either conclusion involves difficulties. The case arose as follows:-The owner of a house contracted with a purchaser for the sale of it. At the time of the contract the house was insured against fire, but the contract contained no reference to the insurance. After the making of the contract, but before the time fixed for completion, the house was damaged by fire, and the vendor received a sum of money from the insurance office. The purchaser completed the contract: it does not appear as clearly as it might from the report whether the money was paid by the insurance office before or after the completion, but we rather gather that it was before.

It was held by the Master of the Rolls in the court below and by the majority in the Court of Appeal that the purchaser was not entitled, as against the vendor, to the benefit of the insurance. And it was thrown out as possible that the office could compel the vendor to refund the money. James, L.J., on the other hand, held that the purchaser was entitled to the benefit of the insurance. It may be noticed that the Master of the Rolls rather puts the case as one which was concluded by previous decisions, and does not argue it on general principles. There does not seem, however, to be any previous decision that was directly binding on the Court of Appeal. The argument for the defendant was that the contract of insurance being something collateral to the subjectmatter of the sale, the benefit of it would not pass with the subjectmatter of the sale unless it were expressly so provided. This contention was adopted in substance both by Cotton, L.J., and Brett, L.J. Cotton, L.J., says, "The contract passes all things belonging to the vendors appurtenant to, or necessarily connected with, the use and enjoyment of the property mentioned in the contract, but not, in my opinion, collateral contracts, and such, in my opinion, at least, independently of the Act 14 Geo. 3, c. 78, the policy of

insurance is. It is not a contract limiting or affecting the interest of the vendors in the property sold, or affecting their right to enforce the contract for sale, for it is conceded that if there were no insurance, and the buildings sold were burnt, the contract for sale would be enforced. It is not even a contract in the event of a fire to repair the buildings, but a contract in that event to pay the vendors a sum of money which, if received by them, they may apply in any way they think fit. It is a contract not to repair the damage to the buildings, but to pay a sum not exceeding the sum insured, or the money value of the injury. In my opinion the contract of insurance is not of such a nature as to pass without apt words under a contraet for sale of the thing insured." Brett, L.J., says, “The subject-matter of the contract of insurance is money, and money only. The only liability of the insurance company is to pay money. The contract was made by the defendants solely and entirely on their own behalf, and at a time when they had no relation of any kind with the plaintiffs. It was a personal contract between the defendants and the insurance office, to which they were the sole parties. It is true that under certain circumstances a policy of insurance may in equity be assigned so as to give another person a right to sue upon it, but in this case the policy of insurance, as a contract, never was assigned by the defendants to the plaintiffs. Any valuation of the policy, any consideration of increase of the price of the premises in consequence of there being a policy, was wholly omitted. There was nothing given by the plaintiffs to the defendants for the contract. The contract, therefore, was neither expressly nor impliedly assigned to the plaintiffs, and, so far as regards the contract of insurance, there never was any relation of any kind between the plaintiffs and the defendants."

It was, no doubt, the fact that there was no express assignment of the benefit of the contract of insurance by the contract of sale, and if there was no implied assignment of it, it is difficult to see how the plaintiff's case could be put. But that is, perhaps, no more than saying that if the law will not treat it as assigned the plaintiff cannot recover, which is really begging the question. The contention of the plaintiff was that the defendant, being between the time of the making of the contract and completion a trustee of the property for the purchaser, and having recovered the money by virtue of his legal ownership of the property, must be considered a trustee of the money recovered. The majority in the Court of Appeal did not assent to this argument. Cotton, L.J., says: “An unpaid vendor is a trustce in a qualified sense only, and is so only because he has made a contract which a court of equity will give effect to, by transferring the property sold to the purchaser, and, so far as he is a trustee, he is so only in respect of the property contracted to be sold. Of this the policy is not a part. The argument that the money is received in respect of property which is trust property is, in my opinion, fallacious. The money is received by virtue or in respect of the contract of insurance." Brett, L.J., doubts whether the vendor can properly be said to be a trustee for the vendee, and says that they are only parties to a contract of which a court of equity will, under certain circumstances, decree a specific performance; and, further, that even if the vendor could be properly said to be a trustee for the vendee it does not follow that anything under the contract of insurance would pass. James, L.J., on the contrary, was of opinion that the doctrine of equity is that, upon completion, the completion relates back to the contract, and it is thereby ascertained that the relation was, throughout, that of trustee and cestui que trust that is to say, that it is ascertained that while the legal estate was in the vendor, the beneficial or equitable interest was wholly in the purchaser; and, furthermore, he held it to be an universal rule of equity that any right which is vested in a trustee, any benefit which accrues to a trustee, from whatever source or under whatever circumstances by reason of his legal ownership of the property, that right and that benefit he takes as trustee for the beneficial owner.

We should not like to say that the decision of the majority was wrong, and it seems to us that this case is fraught with much difficulty whichever way it is decided, but we do feel much regret that the court could not see its way to give effect to what seems to us the justice of the case. The contract of fire insurance being one of indemnity, it seems monstrous that the vendor who, in the result, turns out not to be interested in the premises at all, should

put the money in his pocket as an entirely gratuitous windfall; whereas the unfortunate vendee pays for a house and only gets a ruin. On the other hand, to our mind there is great difficulty in the way of the suggestion that the insurance office can recover the money back. At the time of the receipt of the money the vendor would be entitled to recover it in an action: Collingridge v. Royal Exchange Assurance Corporation (L. R. 3 Q. B. D. 173). If so, it does not seem very clear how the subsequent conveyance of the property can have the effect of entitling the insurance company to recover back money which they paid under compulsion of law, and which they were bound by law at the time to pay. It does seem to us, therefore, that James, L.J., was right when he said that the plaintiff's contention was founded on the natural equity which commends itself to the general mass of the lay world not instructed in legal principles. If the insurance office cannot recover the money back, who ought to have it? The vendor who has received his full price for the value of the buildings uninjured by fire, or the vendee who has paid the full price? Surely, every layman would say the vendee. The Master of the Rolls says that it is possible that were he making law for the first time he might devise some arrangement which would be fair to the purchaser, clearly indicating on which side he thought natural equity lay. On the other hand, it is argued for the defendant, and apparently admitted by James, L.J., that, if the conveyance had been executed, nothing could be recovered upon the policy against the insurance office. The policy not being assigned, the vendee could not recover; the vendor could not recover, having no interest in the premises, and not being damnified by any injury to them by fire. This argument may not perhaps be absolutely fatal to the plaintiff's contention, but it may be urged that it is anomalous that the plaintiff should be entitled to the money recovered before the conveyance to him, which money he could not, by any means, recover from the office after the conveyance to him. But, practically speaking, there is no hardship in the fact that there can be no recovery on the policy for injury by fire after the conveyance is once executed, because it is the purchaser's business to secure himself by effecting a policy on his own account when he has become the legal owner of the premises. With regard to the time between the contract and completion, the case stands on a different footing; the purchaser naturally does not insure what may never be his; the period is one of transition, during which the beneficial interest is combatant, and if the forms of law can be so moulded as to produce that result, the equity of the case certainly would seem to be that any insurance then existing should be for the benefit of the party who may ultimately turn out to have been really interested at the time of the damage by fire.

Lord Justice Brett cited the common law cases as to marine insurance as being fatal in principle to the plaintiff's contention, but those cases do not seem to us similar to that of the sale of a house which we are discussing. The sale of a chattel personal at once passes the legal and beneficial interest, and then the purchaser must secure himself by insurance if he wishes to be insured. The vendor, we take it, could not in such a case recover on the policy, except in cases where it is assigned to him as trustee for the purchaser. Such a case is not similar to the case of the sale of a house, when there is a period of transition between contract and completion during which the title is investigated, and during which the legal ownership remains in the vendor, and he remains entitled to sue on the policy if loss occurs. In the case of a mere personal chattel we should scarcely suppose it would happen that the vendor could recover and retain a sum of money on a policy of insurance, and yet obtain the full price from the purchaser of that of which the purchaser really never got the benefit.

We may be wrong, but we cannot see any insuperable difficulty in holding that, by implication of law, the benefit of the policy, pending the completion of the contract, follows the subject-matter of the sale, on the principle omne accessorium sequitur principale, and must be treated as assigned therewith. The law annexes many incidents to contracts in relation to which the parties have not really contracted at all. It is common to call such cases cases of implied contract, and to say that the law implies the contract. We do not like this expression, because it seems to us that it gives an unnatural meaning to the words "implied contract," which more naturally denote cases