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thirty years, in the special insertion of all pro forma

1 1

LONDON, APRIL 15, 1882.

of the learned judges of the Court of Appeal held that the custom showed upon its face that the court had exceeded its jurisdiction,
had been proved, and the first question was whether it was this was held to be no ground for impeaching it. The Master of
reasonable. The principles on which this question is to be the Rolls is reported to have made some observations which sound
decided by the court are laid down in Tyson v. Smith (9 very like drawing a distinction between notice given to a pur-
A. & E. 421), and as the custom in question undoubtedly tends to chaser and notice given to a purchaser's legal advisers; but we
stimulate the removal by the tenant from the land of obstacles shall wait for a fuller report of his judgment before taking it for
to its proper cultivation, there can be no doubt that the court were granted that he has committed himself to what would in practice
right in holding it to be reasonable. In its results to the land it is almost amount to the abolition of the doctrine of notice. This
advantageous to both landlord and tenant. The next question was decision goes a great way beyond the interpretation put upon
whether the custom was excluded by the terms of the agreement section 70 by Messrs. WOLSTENHOLME and TURNER. They say:-
under which the tenant held. That agreement reserved to the "It seems clear that the purchaser must still ascertain that all
landlord "all mines and minerals, sand, quarries of stone, brick persons in existence who ought to be parties to the action or other
earth, and gravel pits"; and the tenant thereby agreed to commit proceeding appear to be parties or otherwise bound" (1st ed.,
no waste. Now, according to Lord Justice MELLISH in Hext v. Gill p. 91; the italics are in the original). It is gratifying to know
(20 W. R. 957), "the word 'minerals' includes every fossil sub-that the authors of the Act intended something more reasonable
stance; every substance, in fact, of every kind that can be got than what they succeeded in expressing. But, if the court were
from beneath the surface of the earth, and for a profitable to give its plain meaning to the phrase," whether the purchaser
purpose.
The reasonable construction seems to be that has notice of any such want or not," they would have found it
the word 'minerals' includes everything which can be got from difficult to arrive at any other decision. What is there to except
under the surface of the earth for profit, unless there is something notice given by the order itself from these words? The only
in the context or in the nature of the transaction which would alternative was to consider an order made otherwise than in a
induce the court to give it a more limited meaning." Apart valid exercise of jurisdiction, not to be within the section; thus
from the custom, the flints would clearly have been within making nonsense of the words "for want of jurisdiction." We
the reservation of minerals. But both Mr. Justice KAY seem here to have an emphatic warning against saying one thing
in the court below, and the Master of the Rolls in the Court of and meaning another; and although we do not wonder at the
Appeal, seem to have held that the existence of the custom was a decision, we do rather wonder that the court seemed to like it.
ground for holding that minerals did not include the surface flints.
"The word minerals,"" the Master of the Rolls said, " must be con-
strued so as not to include that which, according to the custom of
the country, the tenant was entitled to sell." That is to say, the WHAT CONSTITUTES A "PLACE" USED
word "minerals" must be differently construed according to the
nature of the transaction with reference to which the question of
its meaning arises. We do not say that this ruling is unreasonable,
but we are rather at a loss to reconcile it with the views
so often expressed by the Master of the Rolls against the
adoption of varying meanings of words. As to whether the
custom was excluded by the agreement not to commit waste, Mr.
Justice KAY held, and the Court of Appeal seems to have assumed,
that removing and selling the flints was not waste. According to
the modern rule laid down in Doe v. Earl of Burlington (5
B. & Ad. 507, 517), and which must now be taken to be settled
by Doherty v. Allman (26 W. R. 513), in order to prove waste
there must be proved an injury to the inheritance, either (1) by
diminishing the value of the estate, or (2) by increasing the burdens
upon it, or (3) by impairing the evidence of title. Now, the
evidence in the recent case showed that the removal of the large
flints was necessary for the proper cultivation of the farm; hence
the collecting and removing them from the land by the tenant was
clearly not waste. Whether his sale of them might not be waste
is, we venture to think, a matter of more difficulty. "If a tenant
cutteth down trees for reparations and selleth them, and after
buyeth them again and employs them about necessary repairs, yet
it is waste by the vendition" (Co. Litt. 53b). The practical lesson
of the recent case is to insert in leases of farms in chalk districts
an express exception of surface flints in all cases where it is not
intended that the tenant shall sell them.

WE VENTURED Some time ago to suggest that section 70 of the Conveyancing Act, 1881, might, unless applied in a somewhat guarded spirit, open an easy door to fraud. It seems, however, not to be the policy of the Court of Appeal to make any very strenuous efforts to restrict it. The section enacts that " an order of the court under any statutory or other jurisdiction shall not as against a purchaser be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not ; and the 2nd sub-section applies this rule to the Settled Estates Act, notwithstanding the exception in section 40 of that Act, which provides that an order may be impeached for want of the concurrence or consent of the proper parties. It will be seen from the report of In re Hall Dare's Contract, which we print in another column, that hardly anything could exceed the liberality of the interpretation put upon these enactments by the Court of Appeal. The salient point is, that, while the order

FOR BETTING?

CERTAINLY the niceties of the law have their ludicrous aspects,
and of this the case of Gallaway v. Maries (L. R. 8 Q. B. D.
275) is an illustration. We cannot say that we think the deci-
sion in that particular case wrong, because it did but follow out
the previous decisions, but it seems to us that in their laudable
anxiety to repress what they considered an evil, the judges have
very much strained the natural meaning of words, and something
very nearly approaching to an absurdity has been the result. We
have lately, in relation to another decision, objected to a tendency
towards lax interpretation of the terms of the criminal law, and
it seems to us that the decision in Gallaway v. Maries is a further
example of the tendency to which we then alluded. The contrast once
made between the letter and the spirit has become proverbial, but the
original contrast was not made with regard to mundane statutory
enactments, or else we should be disposed to say that it involved
a dangerous fallacy. The stretching of the meaning of words
to include matters which, quoad the presumed intention of the
enactment, come within the same category as the matters ordinarily
denoted by such words, almost inevitably ends in absurd distinc-
tions. Having once gone beyond the natural meaning, it is
difficult to say logically thus far and no farther, but at the same
time the stretch is felt to be getting too great, and as the com-
mon saying is, "You must draw the line somewhere."

By the 16 & 17 Vict. c. 119, s. 3, any person who, being
the owner or occupier of any house, office, room, or other place,
or a person using the same, shall open, keep, or use the same for
the purpose of betting with persons resorting thereto, is liable to
a penalty.
In the case we are discussing the facts were as
follows:-The respondent and a companion, having paid for admis-
sion, were in a railed inclosure of the grand stand at a race meet-
ing. The companion stood on a small wooden box not attached to
the ground; and he and the respondent called out, offering to
make, and making, bets with other persons. The companion
received the money for bets made, and the respondent booked the
same. They stood together in one place within the inclosure
during the races. It was held that the fixed and ascertained spot
defined in the inclosure by the box, at which the respondent
orally advertised his willingness to bet, was a "place" used by
him for the purpose of betting with persons resorting thereto
within the meaning of the statute above referred to.

The judges who decided the case expressed themselves as very
doubtful whether they could have seen their way to this decision
but for the light thrown on the subject by the previous decisions.

3

thereto.

We are not surprised at this. The decision seems to us about as is a "place" used by him for betting with persons who resort great a stretch of language as it is possible to conceive. A place no doubt, in one sense is a greater or less portion of space. Grove, J., in his judgment, protested against the question London is a place in one sense, and a person who makes a bet in of the magistrates, which asked whether the box was the London uses a place for the purpose of betting, and if he bets" place," saying, as far as we understand him, that it is the box habitually with persons in London he may perhaps be said to use and its site that constitute the place. Of course, as a piece of the place for the purpose of betting with persons resorting thereto; verbal criticism, this is true, but inasmuch as it seems to be but it is obvious that such wide and abstract significations are admitted on all hands that the site without the box or some not contemplated by legal enactments. According to the ordinary equivalent would not have been a place, the substantial question canon of construction some definite place ejusdem generis with is whether the box when occupying the site is a "place." We "house, office, or room must be meant. It is, therefore, clear are afraid that these prodigious exertions to stretch the formula that the Legislature intended to stop short of an enactment sufficiently to include all forms of the mischief supposed to be against the business of betting at large. What may be called aimed at are unavailing, and that, strain as the law will at its ambulatory betting is not within the purview of the enactment. chain of words, the betting confraternity will succeed in just It is quite obvious, indeed, that if it had been, other language keeping out of its reach. Would a pair of high clogs in which a would have been employed. There may have been many reasons man stands at a particular spot be a place? We can hardly see for this. We believe the places known as betting offices were why, according to some of the expressions used by Grove, J., it really what was aimed at, and the Legislature, certainly not being should not be, and yet surely the words cannot be stretched to disposed to make all betting illegal, may have thought it impossible that length. It has been held that where a man stood by a to draw the line between betting pursued as a business and as an particular tree to bet with those resorting to him there, it was amusement. Again, the place in question must be a place capable not sufficient. It seems difficult to think that there can be so of being owned or occupied as a house, office, or room is said to much virtue in a box or three-legged stool. If a man persistbe owned or occupied. I occupy in the course of a morning's ently stands at a particular spot to bet, he does not use a place for walk a good many places, but it is obvious that the mere occupa- betting. If he persistently stands on a stool at a particular place tion of space is not meant. to bet, he does. This seems to us to favour much of what the gravedigger called "good Crowner's Quest law.' We are not sorry that obstacles should be thrown in the way of the bookmaker. To our mind a more pestilent member of society could hardly be found, but we do not believe in stretching the words of penal enactments, however great the apparent advantage to be secured thereby.

Starting, therefore, with the limitation that "place" must be something ejusdem generis with "house, office, or room," we should say that, according to the ordinary and reasonable meaning of words, something in the nature of a substantial structure was requisite to satisfy the words. We do not say that it need be permanent or that it need be fixed to the earth. A booth, a tent, a moveable van, occupying a place temporarily for the purpose of betting, would be sufficient. All those things seem to us to do no violence to the words. But of course such structures, though convenient, are not essential to the bookmaker's business. If he selects some fixed spot at a race-meeting, with some sufficient advertisement of his calling and a conspicuous mark for identification, that is all that is essential. Accordingly in the case of Bows v. Fenwick (L. R. 9 C. P. 339) the respondent employed a stool with a large spiked nmbrella fixed in the ground, with his name painted in large letters thereon. This was held to be a "place" within the meaning of the Act. We cannot help doubting whether this decision is correct. No doubt it may be said that a spiked umbrella is but a small tent, and if a tent might be a place, then why not a spiked umbrella? But it seems to us that this is going too far as a matter of construction. You have not got to see merely whether the thing was within the mischief of the Act. Admittedly, it must come within the words. Again, you have not got merely to see whether the thing is a place." mittedly, "place," in its broadest abstract meaning, is not what is intended. The question is whether it can fairly be said to be a "place" ejusdem generis with "house, office, or room." It is not, to our mind, enough of a structure to be fairly said to be so. Some absurdity there must be in the process known as drawing the line. It may be, to some extent, absurd that a small tent affixed with ropes and pegs to the ground should be a place, but that a spiked umbrella should not; but, on the other hand, it seems to us that a greater absurdity still is ultimately involved by the line of decisions of which Bows v. Fenwick is one.

66

THE JUDICIAL STATISTICS.

CRIMINAL PROCEEDINGS.

THERE was a decrease in the number of persons for trial in England and Wales in 1880 of 1,618, or 9.8 per cent. This is the smallest number since the year 1875, and with the exception of that year the smallest number during the last twenty years. The decrease shown in the year 1880 is stated to be, to some extent, due to the Summary Jurisdiction Act, 1879, which came into operation on the 1st of January, 1880. The latter number 6,089 were tried at quarter sessions, 1,920 at Middlesex county sessions, 3,144 at borough sessions, 2,497 at assizes, and 1,120 at the Central Criminal Court. Of these 14,770 persons sent for trial, 33 were not prosecuted or were admitted as witnesses; against 586 no bills were found, and 2,897 were found not guilty; 16 were acquitted on the ground of insanity, and 24 were found insane. The remaining 11,214 were conAd-victed, of whom 28 were sentenced to death, 1,523 to penal servitude, and 9,147 to imprisonment; 183 were sent to reformatories, and 333 were the numbers for trial was 75.9 per cent. On liberation from prison fined or discharged on sureties. The proportion of the convictions to 1,433 of the persons committed will become liable to police supervision under the Prevention of Crimes Act, 1871. In 1880 it appears that 28 persons, of whom 7 were females, were sentenced to death for murder; 13, who were all males, were executed, and the sentences of the remaining 15 were commuted to terms of penal servitude.

numbers for trial in 1879 were 16,388, and in 1880, 14,770. Of this

The umbrella being thus determined to be illegal, the bookmakers appear to have dropped it, and in the case under discussion only the box in place of a stool was used. The use of something to elevate the betting-man above the general crowd seems, if not essential, at any rate highly useful in the exercise of his avocation. The advertisement of his calling and the conspicuous mark of identification may be by means of a hat of great altitude and startling colour with a name thereon, or some similar device, without any umbrella or post or other structural expedient. Probably with some such equipment as this, and his light box to be used as a platform for operations, Mr. Maries sallied forth. The law has now knocked his box or stool from under him. But really to any person endowed with some breadth of view and sense of humour it is obvious that the decisions have gone a great way when it is held that a light portable stool which a man carries about with him and puts up when occasion requires

CROWN CASES RESERVED.

Twelve cases were, during 1880, submitted to the Court of Criminal Appeal, in one of which two persons were concerned. In 1879 there were 7 cases so submitted. In 7 of the cases submitted in 1880 the conviction was affirmed and in 5 reversed.

COSTS OF CRIMINAL PROSECUTIONS.

cost

assizes and quarter sessions and at the Central Criminal Court, and for
The sums paid by the Treasury on account of criminal prosecutions at
proceedings under the Criminal Justice and Juvenile Offenders Acts, are,
for the
year 1879, as follows:-At assizes 2,368 cases cost
£36,021 18s. 10d.; at the Central Criminal Criminal Court 957 cases
cost £8,362 7s. 1d.; at county quarter sessions 6,346 cases cost
£53,717 16s. 2d.; at Middlesex quarter sessions 1,842 cases
£9,225 78.; at borough quarter sessions 3,078 cases cost £21,085 19s. 11d.,
making a total of 14,591 cases, at a total cost of £128,413 9s., or an average
of £8 16s. in each case. Besides these there were 21,122 cases under the
Criminal Justice and Juvenile Offenders Acts which cost £19,342 103. 5d.,
being an average of 18s. 3d. for each case. As compared with the
numbers in the previous year there is an increase of 137 in the number of
indictments and of 20 in the number of summary proceedings, but a