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Watson, Charles, Ash next Sandwich, Kent, Grocer. Aug 31 at 3 at Guildhall Coffee Partridge, George, Chilton, Suffolk, Farmer. Aug 23 at 12 at Anchor Hotel, Sudbury. House, Gresham st. Sparkes, Sandwich

Mumford, Sudbury Watson, James, King's rd, Canning Town, Bakor. Aug 80 at 8 at Magors'Hall Tavern, Parsons, George, Mansfield, Nottingham, Builder. 'Aug 30 at 3 at office of Mellers and Basinghall st. Lewis, Stratford

Basden, Britannia chbrs, Pelham st, Nottingham. White,

Mansfield Yeoman, Isaac, Birmingham, Hatter. Aug 25 at 12 at office of Beston and Adoock, Platt, James, Southport, Lancaster, Accountant. Aug 28 at 3 at office of Welsby and Waterloo st, Birmingham

Co, Lord st, Southport TUESDAY, Aug. 15, 1882. Adams, Harry, Devonport, Devon, Baker. Aug 26 at 1i at Bank of England chmbrs, Plastenis, Joseph, Birmiugham, Stationer. Aug 28 at 12 at office of Robinson, Cherry Plymouth. Square and Co, Plymouth

Price, Alfred William, Clarendon villas, New Southgato, Builder. Aug 25 at 3 at Guild. Bland, Thomas Henry, Leicester, Builder. Aug 30 at 3 at once of Hincks, Bowling hall tavern, Gresham st. Lewis, Wilmington sq Green st, Leicester

Price, Francis, Bristol, Bakor, Aug 26 at 2 at office of Clifton and Carter, Broad st, Bradley, John, Bradford, Plasterer. Aug 29 at 3 at office of Wilkinson, Kirkgate, Bristol Bradford

Sept 5 at 1 at White Lion Hotel, Eye. Brace, Thomas, Chipping Campden, Gloucester, Tailor. Aug 25 at 1.90 at Lygon Arms, Read: Stephen, Horham, Suffolk, Farmer. Canty, William, Woolwich, Kent, Tobacconist. Aug 28 at 3 at office of Christmas, Rhodes, Arthur, Leeds, Auctioneer. Aug 28 at 11 at office of Wells, Cookridge street,

Roberts, William Henry, Halton, nr Leeds, Post office Clerk. Aug 28 at 12 at office of Champion, Edric Parker, Pancras lano, China Door Furniture Dealer. Sopt 4 at 3 at Pickering, South parade, Leeds office of Start, Ironmonger lane

Robson, John Thomas, Derby, out of business. Aug 29 at? at offices of Pullan, Albion Clifton, Arthur, Orange st, Red Lion sq, Plumber. Aug 29 at 10 at office of Day, South. st, Leeds. Dunn and French, Leeds

ampton st, Bloomsbury sq Cohen, Marks, Manchester, Clothier. Ang 28 at 3 at office of Rideal, Brazennose st, RosklerWilliam, Windsor, Berks, Dentist. Aug 28 at 3 at offices of Phillips and Ford,

Ruck, Charles, Garway, Hereford, Blacksmith. Aug 29 at 11 at offices of Minett and Cole, Edward, Bath, Milliner. Aug 28 at 11.30 at Arundel Hotel, Arundel st, Strand. Piddocke, St Mary's st, Ross Titley, Bath

Samuel, Alfred, Liverpool, Commission Merchant. Aug 28 at 2 at offices of Parkinson, Collins, William Henry, Ipswich, Suffolk, Cabinet Maker. Aug 30 at 2 at Cannon st Dale st, Liverpool Hotel, Cannon st. Jackman, Ipswich

Saunders, George, Stondon Massey, Essex, Farmer. Aug 25 at 3 at the Lion and Lamb, Coomes, John, Cheshunt, Hertford, Farmor. Aug 30 at 3.30 at office of Ramney, Wal. Chelmsford. Lewis, Stratford brook

Sayer, Henry Ord, and Nephi Pickup, Manchester, General Warehousemen. Sept 1 at Cooper, Charles Greenwood, Marmaduke Cooper, and William Cooper, Leeds, Steel 3 at Mitre Hotel, Cathedral gates. Payne and Galloway, Manchester Merchants. Aug 28 at 3 at Law Institute, Albion pl, Leeds. Rider, Leeds

Scott, Thomas, Knottingley, York, Fishmonger. Aug 25 at 3 at offices of Kaberry, Craven, Thomas, and William Craven, Pendleton, Lancaster, Builders. Aug 30 at 3 at Ropergate, Pontefract

office of Farrar and Hall, Fountain st, Manchester Cullen, Bernard, Bradford, York, Tailor. Aug 29 at 11 at office of Beverley and Co, Seels, William, Witney, Oxford, Auctioneer.. Ang 25 at 11 at Crown and Cushion Hustlergate, Bradford

Slipper, John Cooke, and Charles Frank Laws, Stalham, Norfolk, Butchers. Aug 28 Duncan, Archibald, Birkenhead, Chester, Baker. Aug 28 at 3 at office of Leeming, at 12 at offices of Cully and Gould, Queen st, Norwich. Reed and Wayman, Down. Duncan st, Birkenhead. Hannan and Pugh, Birkenhead

ham Market Dincombe, George Grove, Sheldon st, Bishop's rd, Fruiterer. Aug 24 at 3 at office of Smith, Charles, Bristol, Baker. Aug 24 at 2 at office of Collins, Broad st, Bristol Foster, Brunswick sq, Bloomsbury

Clifton and Carter, Bristol Ellis, Harry, Guiver, and Edward Robert Gaiver. Ellis, Elmar rd, West Green, Totten. Smith, Charles, Bristol, Boot Manufacturer. Aug 28 at 2 at office of Benson and Car

ham, Builders. Aug 26 at 2 at offices of Dubois, Serjeant's inn, Chancery lane. penter, Bank chmbrs, Bristol Dubois and Reid, Pancras lane, Queen st

Spells, Philip Walter, King's rd, Fulham, Corn Dealer. Aug 25 at 2 at offices of Evans, William, Knighton, Radnor, Licensed Victualler. Aug 25 åt 12 at Norton Arms Andrews and Mason, Ironmonger lane, Cheapside. Dear, Gresham st Hotel, Knighton. Green

Summerell, James, St Ervan's rd, North Kensington, Tarpaulin Manufacturer. Ang Fazakerley, William, Salford, Lancaster, Coal Dealer. Aug 29 at 3 at offices of Han- 24 at 12 at office of Sampson, Marylebone rd kinson, Manchester

Timothy, William, Salford Priors, Warwick, Roman Catholic Priest. Aug 25 at 11 at Fennell, Frederick George, Loraine rd, Holloway, Commission Agent, Sept 7 at 2 at office of Griffiths, Chipping Campden

offices of Cotton, St Martin's le Grand Fletcher, James, Heywood, Lancaster, Joiner. Sept 1 at 11 at offices of Løyland, Mosley Tombinson, Benjamin, Leicester, Currier. Aug 30 at 12 at ofice of Hincks, Bowling

Tomlinson, John, Liverpool, Grocer's Assistant. Aug 25 at 2 at office of Wood, Church Fox, James, Menston, near Leeds, Farmer. Aug 29 at 11 at offices of Butler and Mid- st, Sheffield. Harris and Gerst, Liverpool dlebronk, Park sq, Leeds

Wedgwood, Samuel, Chester, Baker. Aug 25 at 2 at office of Royle, Newgate street, Gibbins, Elizabeth, and Susannah Mallam, Leamington, Warwick, Drapers. Aug 28 Chester at 3 at offices of Parr ånd Hayes, Colmore row, Birmingham

White, Thomas, Glastonbury, Somerset, Beerhouse Keeper. Aug 28 at 2 at office of Gorg, Richard Spencer, Darlington, Durham, Fishmonger. Aug 30 at 11 at offices of Bullied, High st, Glastonbury Steavenson, Paradiso terraco, Darlington

Wilson, John, Darlington, Durham, Chemist. Aug 26 at 1 at Railway Station Hotel, Grueber, Charles George, Finsbury sq bldgs, Finsbury sq, Solicitor. Aug 25 at offices York. Barron, Darlington

of Tarner, Serjeant's inn, Chancery lane, in lieu of the place originally named Wilson, Newton, and Albert Hoster, High Holborn, Mechanical Engineers. Aug 30 at Hagon, Charles, Orsett st, Newburn st, Chimney Piece Manufacturer. Aug 24 at 3 at 3 at office of Andrews and Mason, Ironmonger lane. Freeman and Winthrop, Bedford

office of Ody, Blackfriars rd
Hall, George, Worcester, Ironmongor. Aug 28 at 11 at offices of Tree and Son, High st,

Ham, Edward Alfred, Norwich, Tobacconist. Aug 28 at 12 åt offices of Bavin and
Daynes, Exchange st, Norwich

Hammond, William, Commercial rd, East, Baker. Aug 25 at 3 at offices of Wilson,

Old Jewry chmbrs. Jackson, Union ct, Old Broad st
Henry, Albert Charles Clements, Flower Markot, Covent Garden, Florist. Aug 30 at



COMMUNICATION BETWEEN SOLICITOR 3 at ofices of Groom, Worm wood st. Davies, Moorgate st

In re The Central Wynaad Gold

Innocent, Jonathan, Herat st, Columbia rd, Hackney rd, Couch Maker Aug 23 at 11 at

Mining Company (Limited)

........ 654
Allen v. Richards

658 49, Bromley st, Commercial rd East, Stepney. Newson, Seymour pl, Marylebone Irvine, Duncan, Deanshanger, Northampton, Florist. Aug 29 at 3 at offices of Becke,


655 In re The Carta Para Gold Mining Co. 653

CORRESPONDENCE ....**.. Derngate, Northampton

.......... 656

The Attorney-General v. The South. Jackson, Charles, Chenies mews, Bedford sq, Pianoforte Manufacturer. Aug 28 at 2 at


Eastern and The Submarine Con.

Robinson y. The Local Board for offices of Williams, Alfred pl, Bedford sq

tinental Railway Companies 658

Barton Jackson, Edward, Peterborough, Northampton, out of business. Sept 5 at 3 at 145,

In roThe Breage United 'l'in Mines Co. 659

The Zoedone Company v. Barrett 657 NEW ORDERS, &c. ............. Cheapside. Wright

In re The Cornwall Mineral Railway SOCIETIES .... ‘Jenkins, Walter Robert, Rotherham, York, Draper. Aug 29 at 12 at offices of Harrop


657) LEGAL APPOINTMENTS and Harrop, Westgate, Rotberham

Hood v. Newby

657 LEGISLATION OF TIE WEEK .......... 661 Jones, William Henry, and Benjamin Barber, Alexandra Palace, Muswell Hill, Refresh.

COMPANIES ment Contractors. Sept 8 at 2 at Guildhall Coffee House, Gresham st. Sturt, Iron.

Selous V. The Wimbledon Local
Board of Health

... 658 CREDITORS' CLAIMS monger lane

........... 662 Kingston, Francis Knightley, London st, Wine Agent. Sept 6 at 12 at 269, High Hol

born. Peacock and Goddard, South sq, Gray's inn
McKellar, John, James Patrick, and Archibald McKellar, West Ham, Esses, Builders.
Aug 25 at 3 at offices of Dash wood, Mark lane

NOTICES TO CORRESPONDENTS.-All communications intended for publication Mellor, Joseph, and Goorge Kendall Stubbs, Macclesfield, Silk Dyers. Aug 28 at 3 at in the SOLICITORS' JOURNAL must be authenticated by the name and address of offices of Barclay and Henstock, Exchange chmbrs, Macclesfield

the writer. Meyers, Charles John, Holland pk ter, Notting hill, out of business. Aug 24 at 12 at Masons' Hall Tavern, Masons' avenue, Basinghall st. Savidge and Stoward, East

The Editor does not hold himself responsible for the return of rejected communi. cheap

cations, Mordecai, Lazarus, Alderney rd, Mile End, Cigar Merchant. Aug 26 at 1 at office of

The Prblisher requests that early application should be made by persons Cattlin, Wormwood Bt, Old Broad st Parker, William Edward, Popham rd, Islington, Cheesemonger. Aug 28 at 3 at office desirous of obtaining back numbers of the SOLICITORS' JOURNAL, as only a small of Hicks, Chancery lane

number of copies reinain on hand.


...... 659


659 .................. 660

.......... 663

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LONDON, AUGUST 26, 1882.

infirmity from leaving her house, but was opposed on the ground CURRENT TOPICS.

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 ON WEDNESDAY Mr. Justice North disposed of the greater Chitty declined to be bound by the practice of eighty years ago. part of a paper consisting of some eighty-seven matters. His The common law practice should be considered, and he had also lordship heard numerous ex parte applications, and sat from 10 some doubt as to the materiality of the condition that the witness a.m. until 7.30 p.m., when he adjourned the sitting till 10.30 a.m. should be the only witness as to a fact. He therefore granted yesterday. An application was made that a day might be the application. It is satisfactory to find a judge taking a liberal appointed for the sitting of a divisional court. His lordship said view as to the rule on this subject, for it would be little less than that the subject might be mentioned to him the following day at a scandal that valuable evidence should be lost through a toochambers.

rigid adherence to the older practice.

MUCH DISSATISFACTION was expressed on Wednesday at the selection of the small and stilling court of Vice-Chancellor HALL AN IMPORTANT QUESTION of jurisdiction was raised in a trial at for the purpose of the Vacation Sitting, and it is to be hoped that the Middlesex Sessions last Wednesday, as to the criminal liability it is not too late to make arrangements for the use on future in this country of a person who has committed an offence in one Wednesdays either of Mr. Justice Fry's court or of the Rolls of the Channel Islands. The prisoner resided in Jersey, and had Court, which was used for the same purpose last year. Even the been engaged by the prosecutor to obtain orders for goods on the court heretofore used as the Ccurt of Appeal would not be too prosecutor's behalf, and to remit to the latter in England all moneys large.

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 IN View of the early opening of the Royal Courts of Justice, it deputy assistant judge stopped the case and directed an acquittal, is to be hoped that the question of the approaches to the new on the ground that, assuming the accused to be the servant of the building will not escape the attention of the Government and the prosecutor, the whole offence was committed in Jersey, which is local authorities. Members of the Chancery Bar will easily reach not, for legal purposes, a part of the United Kingdom. It is to their destination by crossing Carey-street, while common law be observed, however, that if the offence had been commenced in practitioners will, pending the completion of the Temple subway, one part of the kingdom and completed in another, an English brave the perils of the Strand traffic with the aid of the protecting court would, under the 24 & 25 Vict. c. 96, s. 114, have had jurisshelter of the Griffin. The access from the District Railway and diction to deal with the case. The Channel Islands were, of course, from the south and west of London is also fairly open; but, in the on the same footing, in relation to the English tribunals, as case of jurors, suitors, or witnesses arriving from the north and Scotland, India, or the Colonies. It may be remembered that in north-west, street blocks will probably be found of frequent the case of Le Sueur v. Le Sueur (24 W. R. 616, L. R. 1 P. D. 139), occurrence, and, in default of some improvements and openings in an attempt was made to extend the English Divorce Act to Jersey, the direction of Lincoln’s-inn-fields and Drury-lane, we may look on the ground that the Channel Islands form part of the Diocese for much loss of time and judicial temper, and frequent fines upon of Winchester, and were therefore subject to the jurisdiction unpunctual jurors. A direct street to the northward, through transferred from the ecclesiastical courts to the Divorce Court, but Clare Market, would seem to be a simple solution of the difficulty. Sir ROBERT PHILLIMORE held that the Divorce Act did not

extend to the Channel Islands, which were as much exempt from

its operation as Scotland or Ireland. DORING THE LAST FEW YEARS fatal accidents to members of the legal profession when engaged in mountaineering have, at the holiday season, been painfully frequent. In the Long Vacation THE RECENT CASE of In re The Quartz Bill Consolidated of 1875 Mr. WILLIAM WHITTAKER BARRY, of the Chancery Bar, Gold Company (noted ante, p. 643), which came before the Court lost his life in the Tyrol. In 1876 we had to record the death of of Appeal on the 7th inst., raised an important question of proMr. J. M. HAYMAN, of the South-Eastern Circuit, while on a cedure and evidence-namely, the right to withdraw an affidavit tour in Switzerland, and in the following year, Mr. W. A. LEWIS in order to prevent the cross-examination of the deponent. An and Mr. NoEL PATERSON, of the same circuit, lost their lives on affidavit having been filed by a person who sought to rectify the the Lyskamn, near Zermatt. Last year Mr. Henry LATHAM, register of the members of the company by the omission of hiş solicitor, of Gray’s-inn, was similarly killed in Switzerland, and name, an affidavit in answer thereto was filed by a person named we have this week to notice the death of Mr. Dismore, a rising ROEBUCK on behalf of the company. The applicant then obtained solicitor at Liverpool. The last-named gentleman was an expe- an order for the appointment of a special examiner," for the examirienced mountaineer and had only just returned home from a Swiss nation, cross-examination, and re-examination of witnesses who tour, but his fall appears to have been the result of an imprudent have made affidavits for the purposes of the motion.” After the deviation from a well-known path.

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. Ulti

mately the question came before Kay, J., who ordered ROEBUCK MR. JUSTICE CHITTY has recently broken through what was to be cross-examined, and his decision was upheld by the looked upon as the strictly established rule in Chancery as to Court of Appeal. The argument for the company was founded taking the examination of a witness de bene esse. In Vicary v. upon the words of the 15 & 16 Vict. c. 86, s. 40, which provides Stroud (noted ante, p. 617), an application was made to take the that “any party having made an affidavit to be used evidence of a witness who was permanently disabled by chronic before the court, shall be bound, on being served with such writ,

to attend before an examiner for the purpose of being cross- this will cover cases where circumstances render it desirable to examined," and it was said that this could only refer to a “party complete with rapidity, and that it is not intended that a request in a proceeding,” this being the sense in which "party" is used from the client shall be necessary in each case to entitle the soli. in the earlier part of the section. The Master of the Rolls said citor to the additional remuneration. Here, again, the terms of that, notwithstanding the use of the word in two different senses the order are somewhat indefinite upon a matter of considerable in the same section, the practice had been settled by Clarke v. importance to the practitioner.

Law (4 W. R. 35, 2 K. & J. 28), and it was now too late to alter The next point to be noticed is the large class of transactions it. In that case, Lord HATHEBLEY said, “ He has propounded which are outside the scale. Of course, no practitioner ever himself as a witness, and cannot be allowed, if not cross-examined, imagined that a scale could be framed which should be generally to use his affidavit, but, if threatened with cross-examination, to applicable, but the fact that the new scale applies only to completed withdraw it," and, therefore, although the company were not sales, purchases, mortgages, and leases, other than mining leases, bound to use ROEBUCK's affidavit, they could not prevent the and that all other business is to be paid for on the present system, opposite party from doing so. BRETT, L.J., characterized the as altered by schedule 2, invests the alterations effected by that company's contention as “calculated to bring the administration schedule with almost as much importance as the new scale itself. of justice into contempt and ignominy," and he declined to allow We believe that general disappointment will be felt that no scale a party“ to take a step in the proceedings for the purpose of has been provided for re-conveyances of mortgages. This has long winning, and then when he found that it was turning against him been wanted and ought to have been provided. to withdraw it.” It will be observed that the view taken in this It will be observed that the use of the scale is in a sense case is supported by the language of the Order of the Court of and theoretically optional, and the option is vested in the solicitor. Chancery of the 5th of February, 1861, which provides for the He may “before undertaking any business [to which the scale cross-examination of “any witness, whether a party or not.” In applies), by writing under his hand, communicated to his client, principle it is impossible to draw any distinction between affidavits elect that his remuneration shall be according to the present and oral examination, for after an affidavit has been filed, the system as altered by schedule 2.” But we imagine that few deponent is practically in the same position as a witness who has solicitors would care or venture to bargain in this way with a been sworn and examined in chief, and the opposite party should, client beforehand for every transaction, and we apprehend that therefore, be entitled to any benefit to be derived from his rule 6, which embodies this provision, is likely to become a dead testimony.

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 THE REMUNERATION ORDER.

68. 8d.

Coming now to the scale, the first matter to be noticed is the I.

vendor's solicitor's commission of one per cent. up to £3,000, oneWe printed last week this long-expected order, which, as every- fourth per cent. thence to £10,000, and one-eighth per cent. one observes, appears without the signature of the president of thence to £100,000, for negotiating a sale of property by private the Incorporated Law Society. The provisions are, as many contract, and the mortgagee's solicitor's commission of the same practitioners think, unduly complicated, and need some care to amount for negotiating the loan. In the Law Society's scale it comprehend. We propose to comment briefly and tentatively was expressly

stipulated that the commission should include all upon them, rather with a view to exciting discussion than to pro- charges for negotiation ; probably because it was not deemed nouncing a final opinion. The order is not to come into operation properly part of the solicitor's professional work to negotiate sales until December 31 next, and it is obvious that, until it has come in- or loans. "We have it now recognized by the highest authority to actual operation, it will be impossible to predicate with certainty that this is part of the proper business of the solicitor. As the operation of many provisions which at present appear to be regards the negotiation of loans, no doubt the commission will be objectionable.

a practical addition to the remuneration of the mortgagee's soliciThe first thing to be observed is that the scale of remuneration tor, although it is to be observed that the commission will only provided is to be exclusive of disbursements “reasonably and be payable where the mortgagee's solicitor “arranges and obtains properly paid,” other than law stationers' charges, copying, and the loan from a person for whom he acts.” As regards negotiaparchment. A scale inclusive of disbursements would have been tion of sales by private contract we imagine the commission is an obviously unequal and unjust in its operation. Solicitors in utter delusion. No solicitor can compete with the auctioneers or register counties or in copyhold districts would have received less house agents, and the cases in which a solicitor negotiates a sale remuneration than their brethren elsewhere, and the most careful or purchase are, we should fancy-taking the general run of and conscientious solicitor would have received less than the solici- business—very few. The meaning attached by rule 11 to “negotor who “scamps” his work. The new scale is also to be ex- tiating " a sale is very strict. The term would clearly not cover clusive of “extra work occasioned by changes occurring in the the case of the vendor's solicitor employing, on behalf of his client, course of any business, such as the death or insolvency of a an auctioneer or house agent at a commission, to bring him into party to the transaction." These words are taken from the Law communication with a person or persons likely to purchase, and Society's scale of 1873, but it may be doubted whether they are then conducting, through such auctioneer or house agent, all the sufficiently comprehensive. A party to the transaction would negotiations which result in the purchase, for by rule 11 the scale seem to mean a party to the contract, and, if so, the words will not for negotiating applies only where no commission is paid by the cover extra work occasioned by the death or insolvency of a client to an auctioneer, or estate or other agent. We think, on necessary party to the conveyance who is not a party to the the whole, that the commission on negotiating sales by private contract. Lastly, the new scale is to be exclusive of “any busi- contract may be left out of account in considering the adequacy of ness of a contentious character,” and “any proceedings in auy the scale of remuneration offered.

The words of this exception are also taken from the There is a commission of one per cent. up to £1,000, one-half Law Society's scale; but it would have been better if per cent. thence to £3,000, one-fourth per cent. thence to £10,000, some illustration had been given of what is meant by these and one-eighth per cent. thence to £100,000, provided for the exceptions. Payment of money into court is no doubt intended vendor's solicitor “for conducting a sale of property by public to be excluded from the scale, but such an intention is not made very auction, including the conditions of sale, when the property is clear. A very reasonable exception is introduced in favour sold,” and a fee of half that amount on the reserved price when of “any business which is required to be, and is, by special the property is not sold. But when we turn to rule 11, we find it exertion, carried through in an exceptionally short space of time." provided that “the scale for conducting a sale by auction shall In this case the solicitor is to be allowed"“ a proper additional apply only in cases where no commission is paid by the client to remuneration for the special exertion according to the circum- an auctioneer.Now, since property must be sold by auction by stances.” It will be observed that the business must not merely an auctioneer and the vendor always has to pay his commission, it have been carried through with special exertion, but must have would seem that this vendor's solicitor's commission can never be been "required to be " 80 carried through. We presume that earned. We shall be thankful for information as to the meaning






of this part of the order ; at present we confess we are puzzled to settled yet, notwithstanding the decision in Heaven v. Pender. ascertain what can have been in the minds of the framers of the We cannot feel convinced that there is no duty whatever on the order. Can it be intended that every solicitor shall take out an part of a person supplying an article towards any persons other auctioneer's licence ?

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 DAMAGE TO A THIRD PERSON CAUSED point. We quite agree that there cannot be anything in the

nature of a warranty or obligation by way of duty to third persons BY A DEFECTIVE ARTICLE.

that an article should be of any particular description. Again, The recent case of Heaven v. Pender (30 W. R. 749, L. R. 9

we cannot help doubting whether Winterbottom v. Wright can Q. B. D. 302) is one of considerable importance as dealing with fairly be taken as decided on the footing that there was negligence the legal result of a state of facts which must, in the nature of in that case. things, frequently arise, and with regard to which the authorities The argument that is relied on as a conclusive reason for the have presented some amount of doubt and conflict. The facts of non-liability of the person supplying the article to third persons is the case were these :—The defendant supplied and erected a that the liability thus created would be extensive and indefinite. staging round a ship under a contract with the shipowner. The It is urged that, if a person is liable who negligently supplies a plaintiff was employed by the shipowner to paint the ship, and defective article, knowing that it must, in the nature of things, be in the course of the work fell from the staging and was injured by dangerous to those who use it, there would be no end or limit to

In an action for damages it such liability. Instances were suggested in the argument of was held that the defendant had no duty towards the plaintiff to Winterbottom v. Wright by the defendant's counsel. If the supply a reasonably safe staging, and, therefore, was not liable. chain cable of an Indiaman was to break and the vessel went The counsel for the defendant relied in argument on Winterbot- aground, every person affected either in person or property by ton v. Wright (10 M. & W. 109) as being directly in point. the accident might have an action against the manufacturer, and The counsel for the plaintiff relied on George v. Skivington (L. perhaps against every seller of the iron. We feel the force of R. 5 Ex. 1). The court preferred to follow the ner decision, this argument, but it seems to us doubtful whether the extensive and, indeed, what they said amounts to a disapproval of the latter nature of the consequences is necessarily a fatal argument against decision. There are many cases, besides the two above cited, the the existence of a cause of action. The consequences of a breach names of which are familiar to every student of the law, in which of contract for which the consideration is but small may,

in the principles governing this class of cases have been discussed. cases, be very extensive. On the other hand, there are difficulties Langridge v. Levy (4 M. & W. 337), and Longmeid v. Holliday and monstrous consequences that seem to result from holding that (6. Ex. 761), may be mentioned as well-known decisions on the no amount of negligence or recklessness can give a right of action subject. We cannot say that the result of the decisions is alto- against the person supplying an article to third parties. Take gether satisfactory to our mind, or that the recent case goes very the facts as they were alleged to exist in George v. Skivington, far towards putting the law on the subject on a sounder footing and consider the absurdities that result from holding that The general question involved in the cases we have mentioned,

under circumstances an action lie by a stranger and others of the same description that are to be found in the to

the contract. A married


and buys books, seems to be this : to what extent can there be said to be a

some hairwash for her own

Assume that the hairduty on the part of a person supplying any article under a con- dresser has, through the grossest ignorance or carelessness, tract towards persons other than the person with whom he con- put some highly deleterious substance in the hairwash by which tract in respect of such article ? Some points, of course, are very the wife is injured. The wife cannot contract; in law the husclear. It is clear there can be no obligation ex contractu except band is the purchaser. Therefore no action lies. A single woman to the party contracted with ; and, therefore, no question of goes and purchases hairwash for herself. She can sue under warranty can arise.

There cannot be an absolute obligation similar circumstances. All the hairdresser knows in either case towards third parties that the article shall be of any par- is that a woman, whether married or single he neither knows nor ticular sort or quality as that it shall be sound or not dangerous. cares, comes and buys a bottle of hairwash. It seems to us that The liability must, it would obviously appear, be ex delicto, and no observations are necessary to point out the practical absurdity must be based on a breach of duty. Negligence is the ground on

of such a result. which, under the circumstances of most of these cases, the Again, a married man goes to a chemist's to have a prescripliability would most often be based. Langridge v. Levy has been tion made up. The chemist has left a shop-boy entirely unqualialleged to be an exceptional sort of case. There was in that case fied to make up prescriptions. The shop-boy puts some deleterious a false representation made to the purchaser of a gun that it drug in a draught by mistake. If the husband drinks the draught was sound. The vendor was told that the gun was for the and is rendered ill, there is a cause of action, but if the prescripuse of the plaintiff, the purchaser's son. The decision in the tion was for his wife she has no remedy. The result plainly is case was no doubt put on the ground that in substance there was that in cases where, if death resulted from the negligence, there a false representation made to the plaintiff through his father. might be a case of manslaughter, there is yet no duty to support a Parke, B., says, “There is a false representation made by the de- cause of action. We can conceive no doctrine so calculated to fendant with a view that the plaintiff should use the instrument in give colour to the ancient maxim summum jus summa injuria. a dangerous way, and, unless the representation had been made, None of these considerations seem to have occurred to the judges the dangerous act would never have been done.” The case is dis- who decided Heaven v. Pender. We do not say that the decision tinctly put as one of fraud, so that it really has no rela- in that case was wrong ; on the contrary, we think it was right; tion to the question we are discussing. In George v. Skiving- but there was no evidence of negligence there, or, at any rate, no ton there was no allegation of fraud, but the case was put on the evidence of such negligence as was necessary to support the ground of negligence. The facts alleged there were that the action. We must say that if the court thought it necessary to go defendant sold a hairwash to the male plaintiff to be used by further, and to deal with general principles in respect of a matter the female plaintiff

, his wife, and that the defendant had so negli- on which the authorities are conflicting and one of great difficulty, gently and unskilfully conducted himself in preparing the hair- it seems to us very unfortunate that they did not think it worth wash that it was unfit for the purpose, and the female plaintiff while to consider their judgment. We are quite aware of the was injured thereby. The Court of Exchequer in that case difficulty involved in either solution of this question. There are certainly seems to extend the liability towards third persons to degrees of negligence, some amounting to little more than that the cases of negligence. Cleasby, B., said, Substitute the word defendant has not brought a high degree of skill to bear on a mat* negligence for fraud,' and the analogy between Langridge v. ter ; some, again, of the grossest and most blameworthy character, Levy and this case is complete.” We cannot help thinking that the The verdict of a jury in cases of negligence is uncertain and question raised in George v. Skivington is more difficult than the often partial. Consequences of great hardship might ensue if judges in Heaven v. Pender thought, and cannot be considered as strangers to the contract might bring actions against the party



supplying an article for negligence, and no doubt attempts might an. adjoining line of rails without any warning from the capstanbe made to saddle very remote consequences on such party. man who set them in motion, and it was held that the latter was Limitations of some sort would be necessary; but, on the other a person having charge of “a train upon a railway” within hand, we have great difficulty in thinking that no amount of section 1, sub-section 5, and was, therefore, engaged in a common negligence or conscious recklessness can render the supplier of an employment with the plaintiff. On the other hand, in Robins v. article liable to third parties. It, therefore, seems to us that the Cubitt (46 L. T. N. S. 735), the defendants were erecting a large decision in Heaven v. Pender is an unsatisfactory one.

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 DECISIONS UNDER THE EMPLOYERS'

in its progress;

but the man stationed at the bottom was absent

without the permission or knowledge of the foreman during the LIABILITY ACT.

lowering of the pail, which, through not being kept steady, came Since many actions commenced in the county courts under the in contact with a beam, and was thus detached from the pulley Employers' Liability Act, 1881 (43 & 44 Vict. c. 12), have now and caused the accident. Grove and Lopes, JJ., reversing the come before the Queen's Bench Division by way of appeal, it may ruling of the judge of the Westminster County Court, held that be convenient to collate the decisions which have been pronounced the plaintiff was not entitled to recover. 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 Millwall Dock Company (30

" MINES AND MINERALS." W. R. 503, L. R. 8 Q. B. D. 482) is the only reported case before the Court of Appeal

. The plaintiff

, immediately after The meaning to be attached to the words "mines and minerals,” sustaining the injury, verbally reported it to an inspector employed and the effect of a reservation in a grant of such things, has come by the defendant company, who, on the same day, forwarded a twice recently before the courts. memorandum in writing of the details of the accident to the In Tucker v. Linger (30 W. R. 578), the defendant was the superintendent of the company. A week after the accident the lessee of a farm on the chalk hills of Surrey, the lease of which plaintiff's solicitor wrote a letter to the company claiming com- contained a reservation of “all mines and minerals, sand, quarries pensation for the injuries sustained by his client," particulars of of stone, brick-earth, and gravel-pits.” It appeared that the which have already been communicated to your superintendent.” tenant had been in the habit of collecting into heaps the flints The court, affirming the decision of the Queen's Bench Division, which were turned up in the course of ploughing the land, and of held that this notice was insufficient, since it did not state the selling them. The official referee to whom the question was cause and date of the injury in accordance with section 7, and referred found that there was a custom on farms in the district did not even refer to any other document as containing them. to sell the surface fints, and Mr. Justice Kay, in the court below Lord Coleridge thought that a good notice could not be implied (see 30 W. R. 425), the Master of the Rolls, and Lord from separate documents, but that all the requisite particulars Justice Lindley held that such a custom was a good one, must be contained in one document; but, on the other hand, Brett although Lord Justice Cotton doubted. The question thus arose and Holker, L.JJ., expressed their opinion that an omission or whether, the custom being a good one, it was not excluded in inaccuracy in a notice might be cured by reference to another this case by the reservation in the lease. In order to interpret document so long as the defendant was not prejudiced thereby. the word “minerals,” both Mr. Justice Kay and the Master of This judgment virtually affirmed the previous decision of the the Rolls referred to the words of Lord Justice Mellish in Hext Queen's Bench Division in Moyle v. Jenkins (30 W. R. 324, v. Gill (20 W. R. 957, L. R. 7 Ch. 699), that “a reservation of L. R. 8 Q. B. D. 116), where Grove, Lopes, and Bowen, JJ., held minerals includes every substance which can be got from underthat a written notice of the injury was not rendered unnecessary neath the surface of the earth for the purpose of profit, unless by the fact that the defendant was already in possession of all the there is something in the context or nature of the transaction to particulars which the Act requires to be stated. In Stone v. Hyde induce the court to give it a more limited meaning.". The follow(30 W. R. 816), section 7 of the statute was construed liberally. ing words, " sand, quarries of stone, brick-earth, and gravel-pits," A letter had been written to the defendant on the plaintiffs were, however, held to limit the meaning of " minerals” so as to behalf, which described the injury but did not state its cause. exclude surface flints from the reservation, and the effect of The judge of the Lambeth County Court nonsuited the plaintiff words of particular import restricting, the wider meaning on the ground of the insufficiency of the notice, but the Queen's of preceding general words was again illustrated. That Bench Division directed a new trial. Mathew, J., said that the the word “minerals” was capable of the wide signification notice was “ defective as distinguished from invalid,” and that, attached to it in Hext v. Gill, and approved of in Tucker v. there ore, the latter part of section 7 was applicable, the county Linger, can scarcely be doubted after the cases in which its court judge not having found as a fact that there was any inten- meaning has been called in question. And this interpretation tion to mislead. Cave, J., pointed out that the defendant's con- would probably be borne out by the present ordinary use of the tention would render the proviso at the end of section 7 (that a word; though, as James, L.J., said in Hext v. Gill, it is very notice is not to be deemed invalid on account of any defect or in- probable that, if the question were what the words “ mines and accuracy unless the judge is of opinion that the defendant was minerals” meant in the vernacular of the mining and commercial prejudiced thereby, and that the defect or inaccuracy was for the world and of landowners at the end of the last century, no one at purpose of misleading) absolutely ineffective, since it would that time would have thought of classing such substances as clay prevent an omission even in a name or an address from being of any kind as a mineral. amended.

A more difficult question arose in The Midland Railway ComIn Griffiths v: The Earl of Dudley (30 W. R. 797) the pany v. The Haunchwood Brick and Tile Company (30 W. R. injured plaintiff had, by the terms of his employment, agreed 640)—namely, whether a reservation of " mines and minerals" with his employer that the provisions of the Act should not

apply gives a right to work minerals otherwise than in mines or by underto him, and it was held that such a contract was an answer to an ground working. In that case the railway company had, under action for injuries sustained in the course of the employment, and, the Railways Clauses Act, taken certain land and made their railwhile not forbidden by the Act, was also not void upon the ground way immediately over a bed of brick-earth which lay on the of public policy. "Two other cases involved the whether surface. The Railways Clauses Consolidation Act, 1845, s. 77, in section 1 of the Act was applicable. In Cox v. The Great the absence of anything to the contrary, reserves to the former Western Railway Company (30 W. R. 816), the plaintiff had owner of land taken by a railway“ mines of coal, ironstone, slate, been engaged in moving a truck at one of the defendants or other minerals." The defendants now threatened under a goods stations, when he received the injuries complained of in licence from the former owner of the surface to work the bed of consequence of twelve trucks coupled together being backed along brick-earth lying immediately under the rails in such a way as

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