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•Watson, Cbarles, Ash next Sandwich, Kent, Grocer. Aug 31 at 1 at Guildhall Coffee
House, Gresham St. Sparkcs, Sandwioh Watson, James, King's rd, Canning Town, Baker, Aug 80 at 3 at Masons'lHall Tavern,
Basinghall st. Lewis, Stratford Yeoman, Isaac, Birmingham, Hatter. Ang 25 at 13 at office of Beaton and Adoock,
Waterloo st, Birmingham
Tuesday, Ang. 15, 1882. Adams, Harry, Dovonport, Devon, Baker. Aug 25 at 11 at Bank of England chmbrs,
Plymouth. Square and Co, Plymouth Bland, Thomas Henry, Leicester, Builder, Aug 30 at 8 at office of Hinoks, Bowling ■ Green st, Leicester
Bradley. John, Bradford, Plasterer. Aug 29 at 3 at office of Wilkinson, Kirkgate, Bradford
Brace, Thomas, Chipping Campden, Gloucester, Tailor. Aug 25 at 1.30 at Lygon Arms,
Chipping Camden. Barkefl, Moreton in Marsh Canty, William, Woolwich, Kent, .Tobacconist. Aug 28 at 3 at office of Christmas,
Champion, Edric Parker, Pancras lane, China Door Furniture Dealer. Sept 4 at 3 at office of Stnrt, Ironmonger lane
Clifton, Arthur, Orange st, Red Lion sq, Plumber. Aug 29 at 10 at office of Day, Southampton st, Bloomsbury sq
Cohen, Marks, Manchester, Clothier. Ang 28 at 3 at office of Bideal, Brazennose st, Manchester
Cole, Edward, Bath, Milliner. Aug 28 at 11.30 at Arundel Hotel, Arundel st, Strand. Titley, Bath
Collins, William Henry, Ipswich, Suffolk, Cabinet Maker. Aug 80 at 2 at Cannon st Hotel, Cannon st. Jackman, Ipswich
Coomes, John, Cheshunt, Hertford, Farmer. Ang 30 at 3.30 at office of Itumney, Walbrook
Cooper, Charles Greenwood, Marmaduke Cooper, and William Cooper, Leeds, Steel Merchants. Ang 28 at 3 at Law Institute, Albion pi, Leeds. Rider, Leeds
Craven, Thomas, and William Craven, Pendleton, Lancaster, Builders. Aug 30 at 3 at office of Farrar and Hall, Fountain st, Manchester
Cnllen, Bornard, Bradford, York, Tailor. Aug 29 at 11 at office of Beverley and Co, Hustlergato, Bradford
Duncan, Archibald, Birkenhead, Chester, Baker. Aug 28 at 3 at office of Leeming, Duncan st, Birkenhead. Hannan and Pugh, Birkenhead
Dnncombe, George Grove, Sheldon st, Bishop's rd, Fruiterer. Aug 24 at 3 at office of Foster, Brunswick sq, Bloomsbury
Ellis, Harry Guivor, and Edward Robert Gniver Elb's, Elmar rd, West Green, Tottenham, Builders. Aug 26 at 2 at offices of Dubois, Serjeant's inn, Chancery lane. Dubois and Reid, Pancras lane. Queen st
Evans, William, Knighton, Radnor, Licensed Victualler. Ang 25 at 12 at Norton Arms Hotel, Knighton. Green
Fazakerley, William, Salford, Lancaster, Coal Dealer. Aug 29 at 3 at offices of Hankinson, Manchester
Fennell, Frederick George, Loraine rd, Holloway, Commission Agent. Sept 7 at 2 at
offices of Cotton, St Martin's le Grand •Fletcher, James, Hoywood, Lancaster, Joiner. Sept 1 at 11 at offices of Leyland, Mosley
Fox, James, Menston, near Leeds, Farmer. Aug 29 at 11 at offices of Butler and Mid
dlebrook, Park sq, Leeds Gibbins, Elizabeth, and Susannah Mallam, Leamington, Warwick, Drapers. Aug 28
at 3 at offices of Parr and Hayes, Colmore row, Birmingham Gore, Richard Spencer, Darlington, Durham, Fishmonger. Aug 30 at 11 at offices of
Stoavenson, Paradiso terrace, Darlington Grueber, Charles George, Finsbury sqbldgs, Finsbnry sq, Solicitor. Aug 25 at offices
of Tamer, Serjeant's inn, Chancery lane, in lieu of the place originally named Hagon, Charles, Orsett st, Newbura st, Chimney Piece Manufacturer. Aug 21 at 3 at
office of Ody, Blackfriars rd Hall.George, Worcester, Ironmonger. Aug 28 at 11 at offices of Tree and Son, High st,
xlam, Edward Alfred, Norwich, Tobacconist. Aug 28 at 12 at offices of Bavin and
Daynes, Exchange st, Norwich Bammond, William, Commercial rd, East, Baker. Ang 25 at 3 at offices of Wilson,
. Old Jewry chmbrs. Jackson, Union ct, Old Broad st Henry, Albert Charles Clements, Flower Market, Covent Garden, Florist. Ang 30 at '3 at offices of Groom, Wormwood St. Davies, Moorpate st
Innocent, Jonathan, Herat st, Columbia rd, Hackney rd, Couch Maker Aug 38 at 11 at 49, Bromley st, Commercial rd East, Stepney. Newson, Seymour pi, Maiylebone
Irvine, Duncan, Deanshanger, Northampton, Florist. Aug 29 at 3 at offices of Bccke, Derngate, Northampton
Jackson, Charles, Chenies mews, Bedford sq, Pianoforte Manufacturer. Aug 28 at 2 at offices of Williams, Alfred pi, Bedford sq
Jackson, Edward, Peterborough, Northampton, out of business. Sept 6 at 8 at 145,
, Cheapside. Wright
Jenkins. Walter Robert, Rotherham, York, Draper. Aug 29 at 12 at offices of Harrop aDd Harrop, Wcstgate, Rothorham
Jones, William Henry, and Benjamin Barber, Alexandra Palace, Muswell Hill, Refreshment Contractors. Sept 8 at 2 at Guildhall Coffee House, Gresham st. Sturt, Ironmonger lane
Kingston, Francis Knightley, London st, Wine Agent. Sept 0 at 12 at 209, High Holborn. Peacock and Goddard, South sq. Gray's inn
McKellar, John, James Patrick, and Archibald McKellur, West Ham, Essex, Builders. Aug 25 at 3 at offices of Dashwood, Mark lane
Mellor, Joseph, and George Kendall Stubbs, Macclesfield, Silk Dyers. Aug 23 at 3 at offices of Barclay and Henstock, Exchange chmbrs, Macclesfield
Meyers, Charles John, Holland uk ter, Notting hill, out of business. Aug 24 at 12 at Masons' Hall Tavern, Masons avenue, Basinghall st. Savidge and Steward, Eastcheap
Mordecai, Lazarus, Alderney rd, Mile End, Cigar Merchant. Aug 28 at 1 at office of
Cattlin, Wormwood st, Old Broad st Parker, William Edward, Popham rd, Islington, Cheesemonger. Aug 28 at 3 at office
of Hicks, Chancery lane
Partridge, George, Chilton, Suffolk, Farmer. Aug 23 at 12 at Anchor Hotel, Sudbury. Mnmford, Sudbury
Parsons, Goorge, Mansfield, Nottingham, Builder. 'Aug 30 at 3 at office of Mellers and Bosden, Britannia chbrs, Pelham st, Nottingham. White, Mansfield
Piatt, James, Southport, Lancaster, Accountant. Aug 28 at 3 at office of Welsby and Co, Lord st, Southport
Plastans, Joseph, Birmingham, Stationer. Aug 28 at 12 at office of Robinson, Cherry st, Birmingham
Price, Alfred William, Clarendon villas, New Southgato, Builder. Aug 25 at 3 at Guildhall tavern, Gresham St. Lewis, Wilmington sq
Price, Francis, Bristol, Baker. Aug 25 nt 2 at office of Clifton and Carter, Broad st, Bristol
Read, Stephen, Horham, Suffolk, Farmer. Sept 6 at 1 at White Lion Hotel, Eye. Gudgeon
Rhodes, Arthur, Leeds, Auctioneer. Aug 28 at 11 at office of Wells, Cookridge street, Leeds
Roberts, William Henry, Halton, nr Leeds, Post office Clerk. Aug 28 at 12 at office of
Pickering, South parade, Leeds Robson, John Thomas, Derby, out of business. Ang 2* at 8 at offices of Pullan, Albion
st, Leeds. Dunn and French, Leeds Rowley, William, Windsor, Berks, Dentist. Aug 28 at 3 at offices of Phillips and Ford,
Sheet st, Windsor
Ruck, Cbarles, Garway, Hereford, Blacksmith. Aug 29 at 11 at offices of Minett and
Piddocke, St Mary's st, Ross Samuel, Alfred, Liverpool, Commission Merchant. Aug 28 at 2 at offices of Parkinson,
Dale st, Liverpool
Saunders, George, Stondon Massey, Essox, Farmer. Aug 25 at 3 at the Lion and Lamb, Chelmsford. Lewis, Stratford
Bayer, Henry Ord, and Nephi Pickup, Manchester, General Warehousemen. Sept 1 at 3 at Mitre Hotel, Cathedral gates. Payne and Galloway, Manchester
Scott, Thomas, Knottingley, York, Fishmonger. Aug 25 at 3 at offices of Kaberry, Ropergate, Pontefract
Seely, William, Witney, Oxford, Auctioneer. Ang 25 at 11 at Crown and Cushion Hotel, Chipping Norton. Kilby and Mace, Chipping Norton
Slipper, John Cooke, and Charles Frank Laws, Stalham, Norfolk, Butchers. Aug 28 at 12 at offices of Cully and Gould, Queen st, Norwich. Reed and Wayman, Downham Market
Smith, Charles, Bristol, Baker. Aug 24 at 2 at office of Collins, Broad st, Bristol Clifton »nd Carter, Bristol
Smith, Charles, Bristol, Boot Manufacturer. Aug 23 at 2 at office of Benson and Carpenter. Bank chmbrs, Bristol
Spells, Philip Walter, King's rd, Fulham, Corn Dealer. Aug 25 at 2 at offices of Andrews and Mason, Ironmonger lane, Cheapside. Dear, Gresham st
Summerell, James, St Ervan's rd, North Kensington, Tarpaulin Manufactmor. Aug 24 at 12 at office of Sampson, Marylebone rd
Timothy, William, Salford Priors, Warwick, Roman Catholic Priost. Aug 25 at 11 at office of Griffiths, Chipping Campden
Toralinson, Benjamin, Leicester, Currier. Aug 30 at 12 at office of Hincks, Bowling Green st, Leicester
Tomlinson, John, Liverpool, Grocer's Assistant. Aug 25 at 2 at office of Wood, Church
st, Sheffield. Harris and Gcrst, Liverpool Wedgwood, Samuel, Chester, Baker. Aug 25 at 2 at office of Royle, Newgate street,
White, Thomas, Glastonbury, Somerset, Beerhouse Keeper. Aug 28 at 2 at office of
Bullied, High st, Glastonbury Wilson, John, Darlington, Durham, Chemist. Aug 26 at 1 at Railway Station Hotel,
York. Barron, Darlington Wilson, Newton, and Albert Hoster, High Holborn, Mechanical Engineers. Aug 30 at
3 at office of Andrews and Mason, Ironmonger lane. Freeman and Wintbrop, Bedford
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LONDON, AUGUST 26, 1882.
On Wednesday Mr. Justice North disposed of the greater part of a paper consisting of some eighty-seven matters. His lordship heard numerous ex parte applications, and sat from 10 a.m. until 7.30 p.m., when he adjourned the sitting till 10.80 a.m. yesterday. An application was made that a day might be appointed for the sitting of a divisional court. His lordship said that the subject might be mentioned to him the following day at chambers.
Much Dissatisfaction was expressed on Wednesday at the selection of the small and stifling court of Vice-Chancellor Hall for the purpose of the Vacation Sitting, and it is to be hoped that it is not too late to make arrangements for the use on future Wednesdays either of Mr. Justice Fry's court or of the Rolls Court, which was used for the same purpose last year. Even the court heretofore used as the Ccurt of Appeal would not be too large.
In View of the early opening of the Royal Courts of Justice, it is to be hoped that the question of the approaches to the new building will not escape the attention of the Government and the local authorities. Members of the Chancery Bar will easily reach their destination by crossing Carey-street, while common law practitioners will, pending the completion of the Temple subway, brave the perils of the Strand traffic with the aid of the protecting shelter of the Griffin. The access from the District Railway and from the south and west of London is also fairly open; but, in the case of jurors, suitors, or witnesses arriving from the north and north-west, street blocks will probably be found of frequent occurrence, and, in default of some improvements and openings in the direction of Lincoln's-inn-fields and Drury-lane, we may look for much loss of time and judicial temper, and frequent fines upon unpunctual jurors. A direct street to the northward, through Clare Market, would seem to be a simple solution of the difficulty.
During The Last Few Tears fatal accidents to members of the legal profession when engaged in mountaineering have, at the holiday season, been painfully frequent. In the Long Vacation of 1875 Mr. William Whittaker Barry, of the Chancery Bar, lost his life in the Tyrol. In 1876 we had to record the death of Mr. J. M. Hayman, of the South-Eastern Circuit, while on a tour in Switzerland, and in the following year, Mr. W. A. Lewis and Mr. Noel Paterson, of the same circuit, lost their lives on the Lyskamn, near Zermatt. Last year Mr. Henry Latham, solicitor, of Gray's-inn, was similarly killed in Switzerland, and we have this week to notice the death of Mr. Dismore, a rising solicitor at Liverpool. The last-named gentleman was an experienced mountaineer and had only just returned home from a Swiss tour, but his fall appears to have been the result of an imprudent deviation from a well-known path.
Me. Justice Chitty has recently broken through what was looked upon as the strictly established rule in Chancery as to taking the examination of a witness de bene esse. In Vicary v. Stroud (noted ante, p. 617), an application was made to take the evidence of a witness who was permanently disabled by chronic
infirmity from leaving her house, but was opposed on the ground that Lord Eldon had laid down in Bellamy v. Jones (5 Ves. 31) that the application could be granted only on one of three conditions—namely, that the witness was over seventy, or the only witness to a particular fact, or in danger of death; but Mr. Justice Chitty declined to be bound by the practice of eighty years ago. The common law practice should be considered, and he had also some doubt as to the materiality of the condition that the witness should be the only witness as to a fact. He therefore granted the application. It is satisfactory to find a judge taking a liberal view as to the rule on this subject, for it would be little less than a scandal that valuable evidence should be lost through a toorigid adherence to the older practice.
An Important Question of jurisdiction was raised in a trial at the Middlesex Sessions last Wednesday, as to the criminal liability in this country of a person who has committed an offence in one of the Channel Islands. The prisoner resided in Jersey, and had been engaged by the prosecutor to obtain orders for goods on the prosecutor's behalf, and to remit to the latter in England all moneys received from customers. He was charged with embezzling several sums of money which had been paid to him on the prosecutor's account by persons in Jersey and Guernsey. The deputy assistant judge stopped the case and directed an acquittal, on the ground that, assuming the accused to be the servant of the prosecutor, the whole offence was committed in Jersey, which is not, for legal purposes, a part of the United Kingdom. It is to be observed, however, that if the offence had been commenced in one part of the kingdom and completed in another, an English court would, under the 24 & 25 Vict. c. 96, s. 114, have had jurisdiction to deal with the case. The Channel Islands were, of course, on the same footing, in relation to the English tribunals, as Scotland, India, or the Colonies. It may be remembered that in the case of Le Sueur v. Le Sueur (24 W. R. 616, L. R. 1 P. D. 139), an attempt was made to extend the English Divorce Aot to Jersey, on the ground that the Channel Islands form part of the Diocese of Winchester, and were therefore subject to the jurisdiction transferred from the ecclesiastical courts to the Divorce Court, but Sir Robert Phillimobe held that the Divorce Aot did not extend to the Channel Islands, which were as much exempt from its operation as Scotland or Ireland.
The Becent Case of In re The Quartz Mill Consolidated Gold Company (noted ante, p. 643), which came before the Court of Appeal on the 7th inst., raised an important question of procedure and evidence—namely, the right to withdraw an affidavit in order to prevent the cross-examination of the deponent. An affidavit having been filed by a person who sought to rectify the register of the members of the company by the omission of his name, an affidavit in answer thereto was filed by a person named Roebuck on behalf of the company. The applicant then obtained an order for the appointment of a special examiner, " for the examination, cross-examination, and re-examination of witnesses who have made affidavits for the purposes of the motion." After the applicant had been cross-examined on his affidavit, Roebuck was sworn, but the company's counsel objected to his cross-examination, on the ground that his affidavit had been withdrawn. Ultimately the question came before Kay, J., who ordered Roebuck to be cross-examined, and his decision was upheld by the Court of Appeal. The argument for the company was founded upon the words of the 15 & 16 Vict. c. 86, s. 40, which provides that " any party having made an affidavit to be used . . . before the court, shall be bound, on being served with such writ,
to attend before an examiner for the purpose of being crossexamined," and it was said that this could only refer to a "party in a proceeding," this being the sense in which "party" is used in the earlier part of the section. The Master of the Rolls said that, notwithstanding the use of the word in two different senses in the same section, the practice had been settled by Clarke v. Law (4 W. R. 35, 2 K. & J. 28), and it was now too late to alter it. In that case, Lord Hathebley said, "He has propounded himself as a witness, and cannot be allowed, if not cross-examined, to use his affidavit, but, if threatened with cross-examination, to withdraw it," and, therefore, although the company were not bound to use Roebuck's affidavit, they could not prevent the opposite party from doing so. Brett, L.J., characterized the company's contention as " calculated to bring the administration of justice into contempt and ignominy," and he declined to allow a party " to take a step in the proceedings for the purpose of winning, and then when he found that it was turning against him to withdraw it." It will be observed that the view taken in this case is supported by the language of the Order of the Court of Chancery of the 5th of February, 1861, which provides for the cross-examination of "any witness, whether a party or not." In principle it is impossible to draw any distinction between affidavits and oral examination, for after an affidavit has been filed, the deponent is practically in the same position as a witness who has been sworn and examined in chief, and the opposite party should, therefore, be entitled to any benefit to be derived from his testimony.
THE REMUNERATION ORDER.
We printed last week this long-expected order, which, as everyone observes, appears without the signature of the president of the Incorporated Law Society. The provisions are, as many practitioners think, unduly complicated, and need some care to comprehend. We propose to comment briefly and tentatively upon them, rather with a view to exciting discussion than to pronouncing a final opinion. The order is not to come into operation until December 31 next, and it is obvious that, until it has come into actual operation, it will be impossible to predicate with certainty the operation of many provisions which at present appear to be objectionable.
The first thing to be observed is that the scale of remuneration provided is to be exclusive of disbursements "reasonably and properly paid," other than law stationers' charges, copying, and parchment A scale inclusive of disbursements would have been obviously unequal and unjust in its operation. Solicitors in register counties or in copyhold districts would have received less remuneration than their brethren elsewhere, and the most careful and conscientious solicitor would have received less than the solicitor who " scamps" his work. The new scale is also to be exclusive of "extra work occasioned by changes occurring in the course of any business, such as the death or insolvency of a party to the transaction." These words are taken from the Law Society's scale of 1873, but it may be doubted whether they are sufficiently comprehensive. A party to the transaction would seem to mean a party to the contract, and, if so, the words will not cover extra work occasioned by the death or insolvency of a necessary party to the conveyance who is not a party to the contract. Lastly, the new scale is to be exclusive of " any business of a contentious character," and "any proceedings in any court." The words of this exception are also taken from the Law Society's scale; but it would have been better if some illustration had been given of what is meant by these exceptions. Payment of money into court is no doubt intended to be excluded from the scale, but such an intention is not made very clear. A very reasonable exception is introduced in favour of "any business which is required to be, and is, by special exertion, carried through in an exceptionally short space of time." In this case the solicitor is to be allowed "a proper additional remuneration for the special exertion according to the circumstances." It will be observed that the business must not merely have been carried through with special exertion, but must have been "required to be" Bo carried through. We presume that
this will cover cases where circumstances render it desirable to complete with rapidity, and that it is not intended that a request from the client shall be necessary in each case to entitle the solicitor to the additional remuneration. Here, again, the terms of the order are somewhat indefinite upon a matter of considerable importance to the practitioner.
The next point to be noticed is the large class of transactions which are outside the scale. Of course, no practitioner ever imagined that a scale could be framed which should be generally applicable, but the fact that the new scale applies only to completed sales, purchases, mortgages, and leases, other than mining leases, and that all other business is to be paid for on the present system, as altered by schedule 2, invests the alterations effected by that schedule with almost as much importance as the new scale itself. We believe that general disappointment will be felt that no scale has been provided for re-conveyances of mortgages. This has long been wanted and ought to have been provided.
It will be observed that the use of the scale is in a sense and theoretically optional, and the option is vested in the solicitor. He may "before undertaking any business \Ja which the scale applies"], by writing under his hand, communicated to his client, elect that his remuneration shall be according to the present system as altered by schedule 2." But we imagine that few solicitors would care or venture to bargain in this way with a client beforehand for every transaction, and we apprehend that rule 6, which embodies this provision, is likely to become a dead letter. We propose hereafter to consider the changes effected by schedule 2 in the present system; here we may only notice the substitution of 10s. for attendances in place of the time-honoured 6s. 8d.
Coming now to the scale, the first matter to be noticed is the vendor's solicitor's commission of one per cent, up to £3,000, onefourth per cent, thence to £10,000, and one-eighth per cent thence to £100,000, for negotiating a sale of property by private contract, and the mortgagee's solicitor's commission of the same amount for negotiating the loan. In the Law Society's scale it was expressly stipulated that the commission should include all charges for negotiation; probably because it was not deemed properly part of the solicitor's professional work to negotiate sales or loans. We have it now recognized by the highest authority that this is part of the proper business of the solicitor. As regards the negotiation of loans, no doubt the commission will be a practical addition to the remuneration of the mortgagee's solicitor, although it is to be observed that the commission will only be payable where the mortgagee's solicitor "arranges and obtains the loan from a person for whom he acts." As regards negotiation of sales by private contract we imagine the commission is an utter delusion. No solicitor can compete with the auctioneers or house agents, and the cases in which a solicitor negotiates a sale or purchase are, we should fancy—taking the general run of business—rery few. The meaning attached by rule 11 to " negotiating" a sale is very strict. The term would clearly not cover the case of the vendor's solicitor employing, on behalf of his client, an auctioneer or house agent at a commission, to bring him into communication with a person or persons likely to purchase, and then conducting, through such auctioneer or house agent all the negotiations which result in the purchase, for by rule 11 the scale for negotiating applies only where no commission is paid by the client to an auctioneer, or estate or other agent. We think, on the whole, that the commission on negotiating sales by private contract may be left out of account in considering the adequacy of the scale of remuneration offered.
There is a commission of one per cent, up to £1,000, one-half per cent, thence to £3,000, one-fourth percent, thence to £10,000, and one-eighth per cent thence to £100,000, provided for the vendor's solicitor "for conducting a sale of property by public auction, including the conditions of sale, when the property is sold," and a fee of half that amount on the reserved price when the property is not sold. But when we turn to rule 11, we find it provided that " the scale for conducting a sale by auction shall apply only in cases tchere no commission is paid by the client to an auctioneer." Now, since property must be sold by auction by an auctioneer and the vendor always has to pay his commission, it would seem that this vendor's solicitor's commission can never be earned. We shall be thankful for information as to the mefln'"g of this part of the order; at present we confess we are puzzled to ascertain what can hare been in the minds of the framers of the order. Can it be intended that every solicitor shall take out an auctioneer's licence?
DAMAGE TO A THIRD PERSON CAUSED BY A DEFECTIVE ARTICLE.
The recent case of Heaven v. Pender (30 \V. R. 749, L. R. 9 Q. B. D. 302) is one of considerable importance as dealing with the legal result of a state of facts which must, in the nature of things, frequently arise, and with regard to which the authorities have presented some amount of doubt and conflict. The facts of the case were these:—The defendant supplied and erected a staging round a ship under a contract with the shipowner. The plaintiff was employed by the shipowner to paint the ship, and in the course of the work fell from the staging and was injured by reason of a defect in its condition. In an action for damages it was held that the defendant had no duty towards the plaintiff to supply a reasonably safe staging, and, therefore, was not liable. The counsel for the defendant relied in argument on Winterbottom v. Wright (10 M. & "W. 109) as being directly in point. The counsel for the plaintiff relied on Oeorge v. SMvington (L. R. 5 Ex. 1). The court preferred to follow the former decision, and, indeed, what they said amounts to a disapproval of the latter decision. There are many cases, besides the two above cited, the names of which are familiar to every student of the law, in which the principles governing this class of cases have been discussed. Langridge v. Levy (4 M. & W. 337), and Longmeid v. Holliday (6 Ex. 761), may be mentioned as well-known decisions on the subject. We cannot say that the result of the decisions is altogether satisfactory to our mind, or that the recent case goes very far towards putting the law on the subject on a sounder footing. The general question involved in the cases we have mentioned, and others of the same description that are to be found in the books, seems to be this: to what extent can there be said to be a duty on the part of a person supplying any article under a contract towards persons other than the person with whom he contract in respect of such article? Some points, of course, are very clear. It is clear there can be no obligation ex contractu except to the party contracted with; and, therefore, no question of warranty can arise. There cannot be an absolute obligation towards third parties thnt the article shall be of any particular sort or quality as that it shall be sound or not dangerous. The liability must, it would obviously appear, be ex delicto, and must be based on a breach of duty. Negligence is the ground on which, under the circumstances of most of these cases, the liability would most often be based. Langridge v. Levy has been alleged to be an exceptional sort of case. There was in that case a false representation made to the purchaser of a gun that it was sound. The vendor was told that the gun was for the use of the plaintiff, the purchaser's son. The decision in the case was no doubt put on the ground that in substance there was a false representation made to the plaintiff through his father. Parke, B., says, "There is a false representation made by the defendant with a view that the plaintiff should use the instrument in a dangerous way, and, unless the representation had been made, the dangerous act would never have been done." The case is distinctly put as one of fraud, so that it really has no relation to the question we are discussing. In George v. Skivington there was no allegation of fraud, but the case was put on the ground of negligence. The facts alleged there were that the defendant sold a hairwash to the male plaintiff to be used by the female plaintiff, his wife, and that the defendant had so negligently and unskilfully conducted himself in preparing the hairwash that it was unfit for the purpose, and the female plaintiff was injured thereby. The Court of Exchequer in that case certainly seems to extend the liability towards third persons to cases of negligence. Cleasby, B., said, "Substitute the word 'negligence' for * fraud,' and the analogy between Langridge v. Levy and this case is complete." We cannot help thinking that the question raised in Oeorge v. SMvington is more difficult than the judges in Heaven v. Pender thought, and cannot be considered as
settled yet, notwithstanding the decision in Heaven v. Pender. We cannot feel convinced that there is no duty whatever on the part of a person supplying an article towards any persons other than the person contracting for the supply of it. It is well worthy of observation that in Heaven v. Pender, although the action was brought for negligence, there seems to have been no proof of negligence, so that in reality George v. Skevington was not in point. We quite agree that there cannot be anything in the nature of a warranty or obligation by way of duty to third persons that an article should be of any particular description. Again, we cannot help doubting whether Winterbottom v. Wright can fairly be taken as decided on the footing that there was negligence in that case.
The argument that is relied on as a conclusive reason for the non-liability of the person supplying the article to third persons is that the liability thus created would be extensive and indefinite. It is urged that, if a person is liable who negligently supplies a defective article, knowing that it must, in the nature of things, be dangerous to those who use it, there would be no end or limit to such liability. Instances were suggested in the argument of Winterbottom v. Wright by the defendant's counsel. If the chain cable of an Indiaman was to break and the vessel went aground, every person affected either in person or property by the accident might have an action against the manufacturer, and perhaps against every seller of the iron. We feel the force of this argument, but it seems to us doubtful whether the extensive nature of the consequences is necessarily a fatal argument against the existence of a cause of action. The consequences of a breach of contract for which the consideration is but small may, in some cases, be very extensive. On the other hand, there are difficulties and monstrous consequences that seem to result from holding that no amount of negligence or recklessness can give a right of action against the person supplying an article to third parties. Take the facts as they were alleged to exist in George v. Skivington, and consider the absurdities that result from holding that under no circumstances can an action lie by a stranger to the contract. A married woman goes and buys some hairwash for her own use. Assume that the hairdresser has, through the grossest ignorance or carelessness, put some highly deleterious substance in the hairwash by which the wife is injured. The wife cannot contract; in law the husband is the purchaser. Therefore no action lies. A single woman goes and purchases hairwash for herself. She can sue under similar circumstances. All the hairdresser knows in either case is that a woman, whether married or single he neither knows nor cares, comes and buys a bottle of hairwash. It seems to us that no observations are necessary to point out the practical absurdity of such a result.
Again, a married man goes to a chemist's to have a prescription made up. The chemist has left a shop-boy entirely unqualified to make up prescriptions. The shop-boy puts some deleterious drug in a draught by mistake. If the husband drinks the draught and is rendered ill, there is a cause of action, but if the prescription was for his wife she has no remedy. The result plainly is that in cases where, if death resulted from the negligence, there might be a case of manslaughter, there is yet no duty to support a cause of action. We can conceive no doctrine so calculated to give colour to the ancient maxim mmmum jus summa injuria. None of these considerations seem to have occurred to the judges who decided Heaven v. Pender. We do not say that the decision in that case was wrong; on the contrary, we think it was right; but there was no evidence of negligence there, or, at any rate, no evidence of such negligence as was necessary to support the action. We must say that if the court thought it necessary to go further, and to deal with general principles in respect of a matter on which the authorities are conflicting and one of great difficulty, it seems to us very unfortunate that they did not think it worth while to consider their judgment. We are quite aware of the difficulty involved in either solution of this question. There arc degrees of negligence, some amounting to little more than that the defendant has not brought a high degree of skill to bear on a matter; some, again, of the grossest and most blameworthy character. The verdict of a jury in cases of negligence is uncertain and often partial. Consequences of great hardship might ensue if strangers to the contract might bring actions against the party supplying an article for negligence, and no doubt attempts might be made to saddle very remote consequences on such party. Limitations of some sort would be necessary; but, on the other hand, we have great difficulty in thinking that no amount of negligence or conscious recklessness can render the supplier of an article liable to third parties. It, therefore, seems to us that the decision in Heaven v. Pender is an unsatisfactory one.
DECISIONS UNDER THE EMPLOYERS' LIABILITY ACT.
Since many actions commenced in the county courts under the Employers' Liability Act, 1881 (48 & 44 Vict. c. 42), have now come before the Queen's Bench Division by way of appeal, it may be convenient to collate the decisions which have been pronounced under the statute during the past legal year.
In three of the reported cases the decision turned upon the question of the sufficiency of the notice of the injury under sections 4 and 7 of the Act. Keen v. The Hillwall Dock Company (30 W. R. 503, L. R. 8 Q. B. D. 482) is the only reported case before the Court of Appeal. The plaintiff, immediately after sustaining the injury, verbally reported it to an inspector employed by the defendant company, who, on the same day, forwarded a memorandum in writing of the details of the accident to the superintendent of the company. A week after the accident the plaintiffs solicitor wrote a letter to the company claiming compensation for the injuries sustained by his client, "particulars of which have already been communicated to your superintendent." The court, affirming the decision of the Queen's Bench Division, held that this notice was insufficient, since it did not state the cause and date of the injury in accordance with section 7, and did not even refer to any other document as containing them. Lord Coleridge thought that a good notice could not be implied from separate documents, but that all the requisite particulars must be contained in one document; but, on the other hand, Brett and Holker, L.JJ., expressed their opinion that an omission or inaccuracy in a notice might be cured by reference to another document so long as the defendant was not prejudiced thereby. This judgment virtually affirmed the previous decision of the Queen's Bench Division in Moyle v. Jenkins (30 W. R. 324, L. R. 8 Q. B. D. 116), where Grove, Lopes, and Bowen, JJ., held that a written notice of the injury was not rendered unnecessary by the fact that the defendant was already in possession of all the particulars which the Act requires to be stated. In Stone v. Hyde (30 W. R. 816), section 7 of the statute was construed liberally. A letter had been written to the defendant on the plaintiff's behalf, which described the injury but did not state its cause. The judge of the Lambeth County Court nonsuited the plaintiff on the ground of the insufficiency of the notice, but the Queen's Bench Division directed a new trial. Mathew, J., said that the notice was "defective as distinguished from invalid," and that, therefore, the latter part of section 7 was applicable, the county court judge not having found as a fact that there was any intention to mislead. Cave, J., pointed out that the defendant's contention would render the proviso at the end of section 7 (that a notice is not to be deemed invalid on account of any defect or inaccuracy unless the judge is of opinion that the defendant was prejudiced thereby, and that the defect or inaccuracy was for the purpose of misleading) absolutely ineffective, since it would prevent an omission even in a name or an address from being amended.
In Griffiths v. The Earl of Dudley (30 W. R. 797) the injured plaintiff had, by the terms of his employment, agreed with his employer that the provisions of the Act should not apply to him, and it was held that such a contract was an answer to an action for injuries sustained in the course of the employment, and, while not forbidden by the Act, was also not void upon the ground of public policy. Two other cases involved the whether section 1 of the Act was applicable. In Cox v. The Great Western Railway Company (30 W. R. 816), the plaintiff had been engaged in moving a truck at one of the defendants' goods stations, when he received the injuries complained of in consequence of twelve trucks coupled together being backed along
an. adjoining line of rails without any warning from the capstanman who set them in motion, and it was held that the latter was a person having charge of "a train upon a railway" within section 1, sub-section 5, and was, therefore, engaged in a common employment with the plaintiff. On the other hand, in Eobins v. Cubitt (46 L. T. N. S. 735), the defendants were erecting a large building in Leicester-square, and the plaintiff, while employed by them in carrying mortar, was injured through the fall of a pail filled with cement. Two men were employed upon the pulley by which the pail was raised and lowered, in order to keep it steady in its progress; but the man stationed at the bottom was absent without the permission or knowledge of the foreman during the lowering of the pail, which, through not being kept stead)', came in contact with a beam, and was thus detached from the pulley and caused the accident. Grove and Lopes, JJ., reversing the ruling of the judge of the Westminster County Court, held that the plaintiff was not entitled to recover.
"MINES AND MINERALS."
The meaning to be attached to the words "mines and minerals," and the effect of a reservation in a grant of such things, has come twice recently before the courts.
In Tucker v. Linger (30 \V. R. 578), the defendant was the lessee of a farm on the chalk hills of Surrey, the lease of which contained a reservation of " all mines and minerals, sand, quarries of stone, brick-earth, and gravel-pits." It appeared that the tenant had been in the habit of collecting into heaps the flints which were turned up in the course of ploughing the land, and of selling them. The official referee to whom the question was referred found that there was a custom on farms in the district to sell the surface flints, and Mr. Justice Kay, in the court below (see 30 W. R. 425), the Master of the Rolls, and Lord Justice Lindley held that such a custom was a good one, although Lord Justice Cotton doubted. The question thus arose whether, the custom being a good one, it was not excluded in this case by the reservation in the lease. In order to interpret the word " minerals," both Mr. Justice Kay and the Master of the Rolls referred to the words of Lord Justice Mellish in Hext v. Gill (20 W. R. 957, L. R. 7 Ch. 699), that "a reservation of minerals includes every substance which can be got from underneath the surface of the earth for the purpose of profit, unless there is something in the context or nature of the transaction to induce the court to give it a more limited meaning." The following words, " sand, quarries of stone, brick-earth, and gravel-pits," were, however, held to limit the meaning of " minerals" so as to exclude surface flints from the reservation, and the effect of words of particular import restricting the wider meaning of preceding general words was again illustrated. That the word "minerals" was capable of the wide signification attached to it in Hext v. Gill, and approved of in Tucker v. Linger, can scarcely be doubted after the cases in which its meaning has been called in question. And this interpretation would probably be borne out by the present ordinary use of the word; though, as James, L.J., said in Hext v. Gill, it is very probable that, if the question were what the words "mines and minerals" meant in the vernacular of the mining and commercial world and of landowners at the end of the last century, no one at that time would have thought of classing such substances as clay of any kind as a mineral.
A more difficult question arose in The Midland Railway Company v. The Haunchwood Brick and Tile Company (30 W. R. 640)—namely, whether a reservation of "mines and minerals" gives a right to work minerals otherwise than in mines or by underground working. In that case the railway company had, under the Railways Clauses Act, taken certain land and made their railway immediately over a bed of brick-earth which lay on the surface. The Railways Clauses Consolidation Act, 1845, s. 77, in the absence of anything to the contrary, reserves to the former owner of land taken by a railway " mines of ooal, ironstone, slate, or other minerals." The defendants now threatened under a licence from the former owner of the surface to work tho bed of brick-earth lying immediately under the rails in such a way as